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THE 

PROPOSED CONSTITUTION 



OF 

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INDIANA 






By JACOB PIATT DUNN 



INDIANAPOLIS: 
Sentinel Printing Company, Printers and Binders 






n. OF D, 

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THE PEOBLEM. 



The Constitution of Indiana provides a mode for special amend- 
ment of its own provisions, but makes no provision for general 
revision, or the adoption of a new constitution, beyond the declara- 
tions that "the people have, at all times, an indefeasible right to 
alter and reform their government;" and "the legislative authority 
of the State shall be vested in the General Assembly." 

The mode for special amendment provides that "while an amend- 
ment or amendments which shall have been agreed upon, by one 
General Assembly shall be awaiting the action of a succeeding Gen- 
eral Assembly, or of the electors, no additional amendment or 
amendments shall be proposed." The Supreme Court has decided 
that an amendment once submitted to the people remains "pending," 
or "awaiting the action" of the electors, until "a majority of the 
electors of the State" vote either for or against it. 

The Constitution provides that "every person of good moral 
character, being a voter, shall be entitled to admission to practice 
law in all courts of justice." In 1897 an amendment was proposed, 
that the legislature might prescribe qualifications for admission to 
the bar. It. was adopted by two legislatures and has been voted on 
three times; in 1900, 1906 and 1910, without a decisive vote either 
way. Under the Supreme Court decisions it is still "pending;" and 
bars all other special amendments. 

Question: How may the "indefeasible right to alter and reform 
their government" be exercised by the people? 



The Right of Self-Government. 

The right of the people of any American State to revise or alter 
their form of government, at any time, is based on the broad prin- 
ciples asserted in the Declaration of Independence, and never since 
questioned by Americans: "We hold these truths to be self-evident — 
that all men are created equal; that they are endowed by their Creator 
with certain inalienable rights; that among these are life, liberty and 
the pursuit of happiness; that to secure these rights, governments are 
instituted among men, deriving their just powers from the consent 
of the governed; that whenever any form of government becomes 
destructive of these ends it is the right of the people to alter or 
abolish it, and to institute new government, laying its foundation on 
such principles, and organizing its powers in such form, as to them 
shall seem most likely to effect their safety and happiness." 

This right is not dependent on any written constitution, and could 
not be taken away by one. It does not admit of question. It is # self- 
evident, inherent, indefeasible, and inalienable. 

It is declared in every American constitution, not for the purpose 
of conferring it, but for the purpose of emphasizing it as 
the basic principle of every constitution. There is no con- 
stitution in existence in this country, and there has never 
been one, which did not rest wholly on that natural right. Its asser- 
tion was the opening declaration of the Indiana Constitution of 1816 
as it is of the present Constitution, which says, in the first section 
of the first article, that "All power is inherent in the people; and 
that all free governments are, and of right ought to be, founded on 
their authorities and instituted for their peace, safety and well being. 
For the advancement of these ends, the people have, at all times, an 
indefeasible right to alter and reform their government." 

It should be borne in mind that this declaration does not create 
any right, but simply recognizes one that exists, perpetual, inalien- 
able, unchangeable, inherent in the people. It is not an abstract prin- 
ciple, but a practical, available right, that can be acted upon at any 
time, and has been acted upon time and again in the United States. 

It is so universally recognized that it has been seriously questioned 
in the higher courts only once and that was in the extreme case 
of the reconstruction constitution of Tennessee. 

In 1861 the legislature of Tennessee decided for secession, but the 
State was occupied by Union troops, and the secession government 
disappeared, leaving ,only the United States military government in 
its place. Under protection of this, a committee of Union men called 
a constitutional convention, which met at Nashville on January 9, 
1864, and proposed amendments which were adopted on February 22 
following. The amendments were offered to the old Constitution of 

5 



1834. but in the election the suffrage was forcibly restricted to Union 
men, and negroes were allowed to vote, notwithstanding the prohi- 
bition of the Constitution. 

The Supreme Court of Tennessee upheld the amended constitution 
"on the proposition that "All, power is inherent in the people, and all 
free governments are founded on that authority, and instituted for 
their peace, safety and happiness. For the advancement of these 
ends, they have, at all times, an unalterable and indefeasible right 
to alter, reform, or abolish the government in such manner as they 
may think proper." 

These words were quoted from the Tennessee Constitution of 1834, 
but the court added: "These principles in this country are well 
recognized political truths independent of any written constitution 
or laws." (3 Coldwell, p. 569.) 

But some persons have imagined that because the sixteenth article 
of the Constitution of Indiana provides for amendments to it, the 
Constitution can not be changed in any other way. This error is 
based on a misunderstanding of the legal maxim that "the expression 
of one mode is the exclusion of others." This maxim, however, has 
no application to constitutional provisions. It applies to legislation 
for the government of individual citizens, and properly so, because 
the natural rights of the individual to life, liberty and property have 
sometimes to be surrendered for the public safety or welfare, and it 
would be dangerous to all if either could be taken except in the mode 
expressly provided by law. 

But in dealing with the whole people this would be absurd, for 
"all power" is inherent in the people, and can be exercised by them 
except as they voluntarily prohibit its exercise to themselves. Hence 
it is universally recognized that a constitutional provision of a method 
in which a thing may be done carries no restriction of doing a 
different thing — especially when the constitution itself recognizes 
that different thing as an inalienable and indefeasible right. (Jame- 
son, The Constitutional Convention, sees. 395, 396, 574.) 

It was the fear of a different construction being put on the National 
Constitution that caused adoption of the ninth amendment, which 
reads: "The enumeration, in the Constitution, of certain rights shall 
not be construed to deny or disparage others retained by the people." 
This provision, not usually found in State constitutions, was not really 
necessary, but was meant to guard jealously the position that the 
National Government had only those powers granted to it by the 
Constitution. 

This distinction between the constitutional powers of the United 
States and those of the individual States is one as to which there is 
quite common misunderstanding. The affairs of the Nation are so 
much larger than those of the State, and the acts of Congress occupy 
so much more of the attention of the public than the acts of State 
legislatures that it is not always easy to realize that the powers of a 
State legislature are broader in their scope than those of Congress. 



The United States, however, is a government of delegated powers 
and Congress can act only within those powers. All remaining 
powers belong to the States and the people, as provided by the tenth 
amendment to the National Constitution: "The powers not delegated 
to the United States by the Constitution, nor prohibited by it to 
the States, are reserved to the States, respectively, or to the people." 

In its division of "the powers of government" into legislative, 
executive and judicial, the Constitution of Indiana vests "the legisla- 
tive authority of the State" in the General Assembly, with no restric- 
tions except those elsewhere made in the same instrument. The 
question as to the exercise of power by Congress is, "Does the Con- 
stitution authorize it?" The question as to the State legislature is, 
"Does the Constitution prohibit it?" (Cooley's Constitutional Limi- 
tations, p. 242.) 

When Hon. A. C. Harris appeared before the Indiana Senate Com- 
mittee to argue against the bill for the proposed constitution, he 
conceded that the legislature had power to call a constitutional con- 
vention, although the Constitution makes no express provision for 
it, and does make express provision for special amendment to the 
Constitution. When asked where it got the power to call a conven- 
tion, that not being mentioned in the Constitution, he replied that 
the power was "inherent in the legislature." Of course, neither Mr. 
Harris nor any other lawyer will contend that the legislature has 
any powers not conferred on it by the Constitution. The legislature 
was created by the Constitution, and could not possibly get any 
power from any other source. What he evidently meant was that 
the power was inherent in "the legislative authority of the State," 
which the Constitution vests in the 'legislature. On this basis, the 
legislative authority is unquestionable. 

The general -rule of law as to calling constitutional conventions, 
where the Constitution makes no express provision for them, and 
where the Constitution does make provision for special amendments, 
is thus stated by Jameson: "Under the general grant of legislative 
power found in our State constitutions, a legislature is competent to 
provide by law for all exigencies requiring provisions of a legislative 
nature, so far as it is not restrained by rules of morality, or by ex- 
press constitutional inhibitions. This is believed to cover the whole 
case. The making of provision for the assembling of conventions, 
and the hedging of them abo^ut with the restrictions needed as well 
for their efficiency as for the safety of the commonwealth, is em- 
phatically a matter of legislation. * * * The legislation necessary 
to initiate and to temper the operations of a convention no depart- 
ment of the government is competent to effect but the legislature; 
the sovereign itself could not do it, nor the electors — bodies whose 
organization is such as to make deliberation upon the details of laws 
impossible." (Constitutional Conventions, p. 388.) 

If there were any possible question as to the general power of 
revision, or adopting a new Constitution, from a theoretical point of 



8 

view, the question has been settled beyond dispute by the action of 
State after State, forming a line of precedents that are conclusive. 
Says Jameson: "The second subdivision, consisting of conventions 
called for legitimate constitutional purposes by the respective State 
legislatures, under their general legislative power, without the special 
authorization of their constitutions, comprises twenty-seven conven- 
tions. * * * it must be laid down as among the established pre- 
rogatives of our General Assemblies that the constitution being silent, 
whenever they deem it expedient, they may call conventions to revise 
their fundamental laws." (Constitutional Conventions, page 211.) 

We have, therefore, two distinct modes of constitutional alteration, 
universally recognized in the United States; one of general revision 
or adoption of a new constitution, and the other of special amend- 
ment of an existing constitution. Their existence in Indiana does 
not differ from their existence in other States of the Union. Origi- 
nally general revision was the only method in use; and this continued 
until 1818, when the Connecticut constitutional convention introduced 
the system of special amendment which is provided in article 16 of 
the Indiana Constitution. It was aimed there, as here, to avoid the 
trouble and expense of general revision when only slight amendment 
was desired. 

The example of Connecticut was followed by Maine and Alabama 
in 1819, by Massachusetts in 1820, and by New York in 1821, since 
when it has been generally adopted; but it is always adopted as a 
supplementary method, and not as a substitute for general revision; 
and this is a commonly recognized historical fact. 

It is stated by Borgeaud as follows: "This method of partial revi- 
sion, inaugurated in 1818, and from this time forth adopted in most 
of the new constitutions, has become firmly adopted in practice. By 
adopting this system, American democracy did not, however, intend 
to discard that of revision prepared by special conventions, whose 
work is likewise submitted to the verdict of the people. Both sys- 
tems, in the form they had taken in New England, and which the 
adhesion of New York had served to spread throughout the Union, 
were nothing but the application to two different cases, of the theory 
that the electoral body itself is the whole depository of constituent 
power. Each one had its place in the edifice of which this theory is 
the very cornerstone." (Adoption and Amendment of Constitutions 
in Europe and America, p. 170.) 

It may possibly be suggested that the fact that the Indiana Con- 
stitution of 1816 provided expressly for revision by convention, and 
that this was dropped in the Constitution of 1851, constitutes a denial 
by the latter instrument of the right to call a convention. This ques- 
tion is considered by Jameson, and after giving a list of the States 
in which this same situation existed, he says: "Now, in all these 
cases, save those of Indiana and Vermont, the dropping of the pro- 
vision relating to the call of conventions was not regarded as a 
prohibition of the exercise of that power thereafter, because the 



States have all, except those two, since called conventions, without 
question or objection; and, doubtless, upon the principles above ex- 
plained, Vermont and Indiana might at any time have called them." 
(Constitutional Conventions, sec. 574i.) 

II. 
Intent of the Indiana Constitution. 

While the right of the people to adopt a new constitution at any 
time is clear under the general principles of American law, it is 
equally clear that it was the actual intent of the makers of the present 
Constitution to preserve that right, as well as the right of special 
amendment. It is also plain that they meant to preserve it by 
simply not prohibiting it. In fact it is by virtue of this distinction 
between what is prohibited and what is not prohibited that our present 
Constitution itself exists. The Constitution of 1816 made no provi- 
sion for separate amendments, and its only provision as to a new 
constitution, aside from the declaration of right above mentioned, 
was that "every twelfth year after this Constitution shall have taken 
effect'' a vote of the people should be taken for or against a constitu- 
tional convention, and, if the vote was favorable, the legislature 
should call an election for a convention. 

But, in fact, no such vote was taken in 1828, and not in 1840. In 
1849, however, there was a strong demand for a new constitution. 
The breaking down of the State's internal improvement system had 
made necessary a large increase of private corporations, each of 
which had to be formed by a special act of the legislature, and this 
made an intolerable burden. There were also other features in which 
changes were desired, and on January 15, 1849, the General Assembly 
passed a law calling- for a vote on the question of a constitutional 
convention. There was considerable opposition to the convention, 
but at the election on August 6. 1849, it was decided for by a vote 
of 74,895 to 53,639, as announced by the Secretary of State. 

The convention itself recognized fully that it had not been called 
as provided by the Constitution of 1816, and the matter came into 
discussion in connection with the question of amendment, as to which 
there were conflicting views. The present provision for amendment 
(Article 16) was proposed by Robert Dale Owen, but there were 
others who wanted to make a provision for a convention, as in the 
old Constitution. 

In the debate, John Pettit, of Tippecanoe, afterward judge of the 
Supreme Court, and recognized as one of the ablest lawyers in the 
convention, said: 

"Sir, I am clearly of the opinion that we are encumbering our 
records too much with these propositions for amendment. All expe- 
rience shows us that the people of the several States of the Union 
will amend the constitutions of the States whenever and in whatever 
mode they see fit. Thirty years ago our fathers formed a constitu- 



10 

tion in which they inserted a provision that it ijiig-ht.be amended .in 
such a mode, and in no other manner. Yet, here we are proposing 
to violate that very provision." (Debates, page 1938.) 

This last proposition was controverted by. J. B. Howe, of Lagrange, 
who desired to limit the power of amendment. He said: "The gen- 
tleman from Tippecanoe has stated that in the old Constitution there 
is a prohibitory clause preventing amendment or alteration of the 
Constitution unless it be made in the manner set forth therein. I 
think he is a little mistaken, however, as to the text. The Constitu- 
tion prescribes the manner in which it shall be done, but it does not 
deny, or prevent by injunction, the making of amendments in any 
other way. It is for that reason I propose to add the words that no 
convention for the purpose of amending the Constitution shall be 
called at any other time than once in twelve years. I wish to exclude 
a conclusion by declaring that amendments shall not be made in any 
other manner than herein prescribed." 

This view was indorsed by Robert Dale Owen, who said: "I agree 
with the gentleman from Lagrange that the gentleman from Tippe r 
canoe has taken an incorrect view of this subject. He has declared 
that we are here in direct violation of a provision of the old Consti- 
tution. The gentleman from Lagrange has well shown that there 
was no prohibition in regard to the matter. It was well said that the 
question of amendment should be submitted every twelve years; but 
it was not said that the people might not, or that the legislature 
might not pass a law at other periods, calling a convention to amend 
the Constitution." (Debates, p. 1938.) 

But Mr. Owen was equally in opposition to the proposal to restrict 
the right of revision. He proceeded: , 

"Now the gentleman from Lagrange proposes that there shall be 
in the Constitution an absolute prohibition in regard to this matter.. 
There are some things, sir, that it is in ,vain to do, in legislation. 
We must never, in legislation, attempt impossibilities. The gentleman 
is attempting an impossibility now; he is attempting that which he 
has no right, which this Constitution has no right to do — which no 
power on earth has any right to do. [Applause.] 

"If we have a right to say that the legislature shall not, in twelve 
years, pass a law calling a convention, we have an equal right to say 
that they shall not call a convention in twenty years, or in fifty years. 
We have an equal right to say that there shall be no convention held 
within our time or within that of our children. Shall we, by »a section 
to be inserted in our Constitution, declare that we are infallible, and 
that what we now enact shall not be changed?" 

The views of Mr. Owen on this subject are of special importance 
because they were fully adopted by the convention, on all points, by 
overwhelming votes; and he made it clear that he had no intention, 
of restricting the power of revision, but on the contrary, he desired 
to furnish an easy and simple mode of amendment which would 
obviate the necessity of. .calling a convention. He said: 



11 

"I am not prepared to say as to how far the abstract right of the 
legislature extends in regard to submitting to 'the popular vote propo- 
sitions of amendment; nor am I prepared to say that as a matter of 
abstract right they may not do so whenever they think it proper and 
expedient. But I say if you insert such a provision as this, placing 
no greater check than that of requiring two successive legislatures to 
act affirmatively upon the question before it shall be submitted to the 
people, I am convinced that it will be entirely satisfactory." (De- 
bates, p.. 1939.) 

This same idea of avoiding the trouble and expense of an unneces- 
sary convention was general. When the plan of separate amend- 
ments was first offered, A. C. Stevenson, of Putnam, said: 

"It will be no easy or brief task for this convention to remodel 
the whole Constitution. It will take this convention at least four 
months to do it; whereas, if there had been a provision of this kind 
in the old Constitution the necessary amendments might have been 
made with a very trifling expense." (Debates, p. 1258.) 

The same argument was used afterward (Debates, pp. 1916, 1918), 
and it was clearly shown that the aim of the convention was not to 
limit the right of revision, but to extend it by the system of special 
amendment. 

It is well-settled law that the debates of a constitutional conven- 
tion may be looked to in determining the meaning of a provision of 
the Constitution; and it is equally well-settled that the whole instru- 
ment is to be construed as one, giving full effect if possible to every 
section. (Cooley's Constitutional Limitations, p. 91.) By both of 
these tests it is evident that the provisions for amendment in article 
16 are not intended as any limitation on the right of the people to 
adopt a new constitution whenever they so desire, which is declared 
in article 1. The only restriction is that if they desire to proceed 
by special amendment, under article 16, they must follow strictly the 
method there provided, in order to make the amendment valid. This 
principle is so firmly arid universally settled that anything more than 
its statement would be superfluous. 

It is fortunate for the people of Indiana that this general power 
is reserved to them, for the system of special amendment has come 
to grief in a way that the constitution makers of 1851 never con- 
templated. It is impossible to read their statements and believe that 
they ever dreamed that the Supreme Court would hold that an amend- 
ment once submitted to the people and in which the majority of the 
people did not take enough interest to vote, either for or against it, 
should remain "pending" forever, and thereby block the. introduction 
of any other amendment. But they provided that "while an amend: 
ment or amendments, which shall have beem agreed to by one Genr 
eral Assembly shall be awaiting the action of a succeeding General 
Assembly, or of the electors, no additional amendment or amen.dr 
ments shall be proposed." , 

The so-called "lawyer's amendment" was introduced in the legisla-* 



12 

ture in 1897. and under the decisions of the Supreme Court has 
been "pending" ever since. It was voted on in 1900, 1906 and in 1910, 
but without result. It still "pends," preventing" the submission of 
any other special amendment. For thirteen years the people have 
been shut out of their inalienable right of amendment. The Consti- 
tution of 1816 provided for a popular vote for a convention every 
twelve years. 

Meanwhile numerous proposals for amendments have come up, 
and are '"overdue." Most of the changes proposed have been urged 
and discussed for years. The demand has been so pronounced that 
1 called attention to it as one of the historic movements of the time 
in my history of Indiana, edition of 1904. (Indiana, in American 
Commonwealth Series, p. 468.) 

This is the situation that has developed from what the constitution 
makers of 1851 intended as a simple and easy mode of amendment. 
The idea that a sovereign people, with the indefeasible and inalien- 
able right to alter their constitution at will, should have their hands 
tied, aird their right defeated and alienated, because of lack of inter- 
e>t in some question submitted to them is so grotesque in its absurd- 
ity that: its mere statement is ample proof of its impossibility. If the 
constitution makers of 1851 had produced such a situation, and could 
realize it, they would certainly be convinced that "reason had not 
died with them." 

But that situation does not exist; and the people of Indiana, in 
this emergency, are indebted to Governor Marshall for calling atten- 
tion to the great fountain of reserve power in the people themselves, 
by which they can at any time make such alteration in their form of 
government as they believe essential to their welfare. There is noth- 
ing irregular or revolutionary in this. It involves only coming out 
of a rut, and moving ahead on the broad and unobstructed road 
which is provided for them by the Constitution itself. The people 
themselves have only to say whether they desire to remove the evils 
which experience has shown to exist in their present Constitution. 
This is the sort of solution for such a problem that Oliver P. Morton 
would have made, and it is in such recurrence to the fundamental 
principles of our government, when new problems arise, that the 
truest statesmanship is to be found. 

III. 

The Legislative Authority. 

The situation presented in Indiana is one where a power of special 
amendment is provided by the Constitution, and the mode of exer- 
cising it is prescribed; while a general power of adopting a new 
constitution is also preserved, but with no mode prescribed. Under 
these conditions the provision of the mode is necessarily a matter 
of legislative discretion, because it is a legislative act, and the 



13 

Constitution vests "the legislative authority of the State" in the 
General Assembly, The rule is thus stated by Judge Cooley: 

"The will of the people to this end can only be expressed in the 
legitimate modes by which such a body politic can act, and which 
must either be prescribed by the constitution whose revision or 
amendment is sought 6r by an act of the legislative department of 
the State, which alone would be authorized to speak for the people 
upon this subject, and to point out a mode for the expression of 
their will, in the absence of any provision for amendment or revision 
contained in the constitution itself." (Constitutional Limitations, 
p. 42; Jameson, Constitutional Conventions, sec. 375.) 

This is necessarily true, because neither the executive nor the 
judiciary could prescribe the mode, and there is no way for the 
people to act except through their representatives. It is true that 
there have been cases when the movement was initiated by volunteer 
bodies, but this was in the absence of a valid, or effective legislative 
body. Of the thirteen original States, Pennsylvania was the only one 
in which the initiative of the constitution was not by the legislative 
body, but that case was one of practical necessity. The same course 
was followed by Vermont, which had no legislature, in 1777, and has 
been followed by some other States since, but it is a generally con- 
ceded legal proposition that if there is a valid legislative department 
in existence, an independent movement is not to be considered legiti- 
mate. 

This question, however, has been the cause of serious disturbance 
in the United States, and of great agitation. It was the central 
question in the Kansas troubles over the Topeka and Lecomptom 
constitutions, and also in "the Dorr rebellion" in Rhode Island. In- 
the latter case a body of citizens, probably a majority, wearied by 
the refusal of the charter government to allow a more democratic 
form of government, undertook to establish a new constitution and 
a government under it. The movement was suppressed, and the cas« 
finally came to the Supreme Court of the United States, which sus- 
tained the charter government as the valid existing legislative body. 
(7 Howard, United States, p. 1.) In none of these cases has any- 
body questioned the validity of initiation of a revision by the legisla- 
ture — the question was the validity of the initiative by independent 
bodies of citizens. 

The common mode of legislative procedure is to call a constitu- 
tional convention, or to submit to a vote of the people the question 
of calling a constitutional convention. A convention so called is 
simply an agency for preparing a form of constitution for submission 
to the people. It is governed by the law which calls it not only as 
to its membership and mode of election, but as to the scope of its 
work. The legislature may limit the convention to a change of only 
a part of the constitution if it so desires. (Jameson, Constitutional 
Conventions, sec. 379.) In the absence of constitutional restriction 
the matter is one of legislative discretion; and this extends beyond 



14 > 

the calling of a convention to any other mode of submitting a con- 
stitution to the people that is within "the legislative authority of the 
State.' 

This term was borrowed from English law, and means the legislative 
power exercised by the British Parliament, subject, of course, in this 
country, to the restrictions of constitutions. (Cooley, Constitutional 
Limitations, pp. 104-5.) In the United States, at the time of the 
Declaration of Independence, the colonial legislative bodies had been 
supplanted by independent, or revolutionary legislative bodies in all 
the Colonies but Rhode Island and Connecticut. These bodies were 
known chiefly as "assemblies," "congresses," or "conventions," and 
were ordinary legislative bodies, as distinguished from the "constitu- 
tional conventions" of later date. When, therefore, on May 15, 1776, 
the Continental Congress "recommended to the several assemblies 
and conventions of the United Colonies where no government suffi- 
cient to the exigencies of their affairs hath been hitherto established, 
to adopt such government as shall, in the opinion of the representa- 
tives of the people, best conduce to the happiness and safety of their 
constituents," its appeal was to the ordinary legislative bodies, which 
were recognized as having the same power of making fundamental 
law, or constitutions, as the British Parliament. (Jameson, Constitu- 
tional Conventions, sees. 128-9.) 

The action taken was on the same basis. The first Colony to 
move was New Hampshire, whose legislative body was known as 
"the Proyincial Convention." On November 3, 1775, the Continental 
Congress had agreed to call for the formation of independent colonial 
governments, and, without waiting for the formal call, the Provincial 
Convention of New Hampshire called for the election of a new con- 
vention "empowered by their constituents to assume government" — 
the Colony had not yet abandoned allegiance to King George. The 
election was held, and "as soon as the new convention came together, 
they drew up a temporary form of government; and agreeably to the 
trust reposed in them by their constituents, having assumed the name 
and authority of a House of Representatives, they proceeded to 
choose twelve persons to be a distinct branch of the legislature, by 
the name of a Council." (Belknap's Hist, of New Hampshire, vol. 2, 
p. 305.) In other words, the colonial legislature adopted the first 
constitution of New Hampshire, and then organized as the first legis- 
lature under the constitution they had made, continuing in office for 
one year. 

This was the mode of adoption of the first American constitution, 
and the institution of independent government under it. Tt followed 
the precedent of the "Convention Parliament" of Great Britain, which 
was assembled by King William in 1689, in its "assumption of gov- 
ernment;" but in its adoption of the constitution the colonial legisla- 
ture exercised only the legislative powers of a British parliament, 
which were what was meant by "the legislative authority of the 
State," at that time. For the subsequent modification of that power 



15 

by constitutional restraint, it will be necessary to look briefly at some 
of the precedents in the history of the American States. 
" The three original States next following New Hampshire in the 
adoption of constitutions used the same method, i. e., the constitu- 
tions were formulated and adopted by the ordinary legislative bodies 
without submission to the people; and these legislative bodies as- 
sumed the legislative powers under the constitutions, and proceeded 
with their exercise. These three States were South Carolina, Vir- 
ginia and New Jersey, and these, with New Hampshire, were the 
only States that adopted constitutions prior to July, 1776. Exactly 
the same course was followed by Georgia in October, 1776. 

These were illustrations of "the legislative authority of the State" 
without constitutional restriction. Its exercise was considered by 
the Supreme Court of South Carolina in 1823, and the court made the 
clearest and most exact statement of the character of the legislatures 
of the revolutionary period that was ever written. It is as follows: 

"Between the declaration of our national independence and the 
adoption of the Federal Constitution this State was sovereign and 
uncontrolled. The people, in whom all power was vested, thought 
proper to employ the legislature as their agent in the exercise of 
that power. 

"In the use of this power the legislature was not restricted. The 
legislators were the representatives of the people for all purposes; 
whatever could be done by the people could be done by the legisla- 
ture. Each succeeding legislature possessed the same power and 
could not be bound by any act of a preceding legislature, for each 
legislature was the people. Whatever, therefore, one legislature 
could enact, a succeeding legislature could repeal. The form of 
government adopted by the legislature of 1776 was no more than 
any other legislative act, and was subject to the revision and repeal 
of a succeeding legislature. The legislature of 1778 did revise and 
repeal the act of 1776, and adopted another form of government, 
which is called 'the Constitution of 1778.' This constitution pretends 
to no control over succeeding legislatures, although it does restrain 
the officers of the government in the exercise of the powers vested in 
them for the administration of the laws. Had it attempted to re- 
strain future legislatures it would have been inoperative, as each 
legislature possessed all the power of the people. The people, or 
their representatives, the legislature, when unlimited by the people, 
may do whatever is (not) physically impossible, although they ought 
not, as moral agents, to do what is morally wrong." (3 McCord, 
p. 354.) 

This last sentence, so far as the law-making power is concerned, 
states exactly "the legislative authority of the State," which is 
vested in the State legislatures of today, and which has been fully 
recognized by the Supreme Court of Indiana in an unbroken line 
of judicial decisions running from 6 Blackford, p. 299, to 163 Ind., 
p. 512. As put by Judge Dewey and indorsed by Judge Elliott: "The 



16 

legislative authority of this State is the right to exercise supreme; 
and sovereign power, subject to no restrictions except those imposed 
by our own Constitution, by the Federal Constitution, and by the 
laws and treaties made under it." (101 Ind., p. 564, at p. 567.) 

IV. 

The Legislative Discretion. 

The right to exercise sovereign legislative power necessarily in- 
volves full legislative discretion in the exercise of that power. The 
power would not be "sovereign" if this were not true. The use of, 
this discretion was well illustrated in the action of the thirteen 
original States, all of which stood on the same basis of unlimited, 
sovereignty after declaring their independence. In five of them, 
as we have seen, viz., New Hampshire, South Carolina, Virginia, New 
Jersey and Georgia, the legislatures exercised the full sovereign legis- 
lative power by adopting constitutions without submitting them to a 
vote of the people for ratification, and by organizing the new govern- 
ment under these constitutions. They retained and exercised the 
legislative powers themselves, and elected the necessary executive 
and judicial officers. 

In the remaining States, four distinct courses were followed by the 
legislatures. In August, 1776, the legislature of Maryland called for 
the election of a new legislature or "convention" for the special 
purpose of adopting a constitution, in addition to usual legislative 
work. The "convention" so elected continued as a legislature after 
adopting the constitution, which was not submitted to the people for 
ratification. The same course was followed by New York in 1777; 
and- with these two may be classed Pennsylvania and North Carolina, 
where the action was the same, except that the legislative body 
which adopted the constitution was called in Pennsylvania by a volun- 
teer committee of citizens, and in North Carolina by the Committee 
of Safety. In these four the constitutions were not submitted to the 
people, and the bodies that formed them continued as ordinary 
legislatures. 

In Rhode Island and Connecticut the power exercised by the 
legislatures was in principle the same as in the first five States above, 
but differed in the fact that the legislatures of these two adopted 
their existing colonial charters as constitutions, merely transferring 
their allegiance from the King of Great Britain. The same legis- 
latures continued under the new governments, and the matter was 
not submitted to the people for ratification in any way. 

In July, 1776, the legislature of Delaware called for the election of 
"deputies, to meet in convention, there to organize and declare the 
future form of government for this State." This convention met in 
August, and the constitution adopted by it was proclaimed on Sep- 
tember 21, without submission to the people. It was the first body 
chosen for the special purpose of forming a constitution, and the 
only one of the original thirteen that did not exercise ordinary legis- 



17 

lative powers; except that it called an election on Octobej 21 for 
selecting the officials provided for in the Constitution. 

The last of the thirteen Colonies to adopt a constitution was 
Massachusetts. In that State the legislature first had a vote taken on 
the question of calling a special convention to form a constitution, 
and called it in compliance with the vote. The convention so called 
framed a constitution and submitted it to a vote of the people, with 
provision that a three-fifths vote should be necessary for ratification. 
This was the only one of the thirteen original States in which the 
first constitution was submitted to the people for adoption. 

Since the adoption of the Federal Constitution "the legislative 
authority" of each State has been limited to the extent of the author- 
ity vested in the United States, but "the powers not delegated to the 
United States by the constitution, nor prohibited by it to the States, 
are reserved to the States, respectively, or to the people." In addition 
to this there have been various restrictions on "the legislative author- 
ity of the State" that is vested in State legislatures, by the constitu- 
tions of the several States, the most important and universal being 
the restriction of the legislature to legislative powers as distinguished 
from executive and judicial powers. 

In regard to fundamental legislation, or the adoption of constitu- 
tions, there is generally conceded to be a limitation of final power 
by the common declaration that "the people have, at all times, an 
indefeasible right to alter and reform their government." It is true 
that there have been a number of State constitutions adopted without 
submission to the people, but this has been done only by constitu- 
tional conventions, and when done is justified on the theory that the 
people have delegated their final power of adoption by electing a 
convention especially for that purpose. Nobody claims that a State 
legislature would have power to adopt a constitution without submit- 
ting it to a vote of the people. 

On the other hand, the power of initiation of fundamental legisla- 
tion is even more firmly established in the legislature than it was in 
colonial times, for in the original States all of the legislatures that 
adopted constitutions were in the first instance created by independ- 
ent action of the people, and in Pennsylvania the body that adopted 
the first constitution was called directly by an independent, volunteer 
committee of citizens. But since the formation of our National 
Government no such independent action has been recognized as 
valid if there was in existence at the time a valid legislature. Fur- 
thermore, in all cases when constitutions have provided for either 
special amendment or general revision, the initiative step, whatever it 
might be, has been given to the legislature. 

The constitutions adopted in this later period have been of two 
classes: (1) those adopted by existing States, in place of former 
constitutions; (2) those adopted by new States for admission to the 
Union. In both these classes the usual mode of procedure has been 
by constitutional convention, for three reasons: (1) Where constitu- 



18 

tions have provided the mode of general revision they have adopted 
the convention system; (2) Where new States have been formed 
under enabling acts those acts have usually provided for conventions; 
(3) Where no mode of general revision has been provided by the 
constitution, legislatures have usually provided for constitutional 
conventions, because they had as much as they could well attend to in 
ordinary legislation. Hence the cases of general revision by legisla- 
tures in the later period are few 'in number, and in the nature of 
emergency action; but they are* none the less examples of "legislative 
authority" and "legislative discretion." 

Of the exercise of legislative discretion by existing States in the 
general revision of their constitutions, the most notable illustrations 
are under what is known as "the commission system." This orginated 
in New York in 1872, when the legislature, without any express 
authority, and without any precedent, passed an act for the appoint- 
ment of a commission of thirty-two members, four from each judicial 
district, "for the purpose of proposing to the legislature at its next 
session, amendments to the Constitution." The amendments so pro- 
posed were so extensive that they amounted to a revision of the 
Constitution, some fourteen weeks being occupied in' their prepara- 
tion. With some changes by the legislature they were submitted 
to the people as "amendments," although the existing Constitution 
provided for conventions to "revise the Constitution and amend the 
same." 

A similar course was followed by New Jersey in 1875, except that 
the commission was composed of three persons appointed by the 
Governor, the President of the Senate and two persons appointed by 
him, and the Speaker of the House and two persons appointed by 
him. The changes proposed by this commission were also submitted 
to the people, by the legislature, as "amendments." 

The Michigan legislature of 1873 provided for a commission of 
eighteen members appointed by the Governor, not more than two 
from any one congressional district, who were to report to the next 
session of the legislature, general or special, "such amendments and 
revision of the Constitution" as they deemed advisable. They recom- 
mended a revised constitution to the special session of the legislature 
in 1874, which amended it and submitted the amended constitution 
to the. people as a whole, just as the Indiana legislature has done. 
(Michigan Session Laws, 1874, p. 11; Senate Journal, p. 215.) 

In Maine there was a novel action that will illustrate the scope of 
"legislative discretion" in the initiation of constitutional reform. 
The proposals of the commission were submitted as amendments, 
but with the provision that after the election "the Chief Justice of 
the Supreme Judicial Court shall arrange the constitution as amended, 
under appropriate titles, and in proper artcles, parts and sections, 
omitting all sections, clauses and words not in force, and making no 
other changes in the provisions or language thereof, and shall submit 
the same to the legislature at its next session." 



19 

If approved by the legislature this revision was to be formally 
enrolled and "the constitution with the amendments made thereto, 
in accordance with the provisions thereof, shall be the supreme law 
of the State." 

This provision was carried out, and the revised constitution so 
adopted became the Constitution of the State, although the preceding 
Constitution contained no provision for change in that manner. 

In the adoption of constitutions for new States the general rule 
has been for conventions to be called under "enabling acts" passed 
by congress, but a number of new States adopted constitutions with- 
out waiting for that authorization. Among these were Tennessee, in 
1796; Michigan, in 1835 and 1836; Arkansas, in 1836; Florida, in 1839; 
Iowa, in 1844; Wisconsin, in 1847; California, in 1849; Kansas, in 
1855; Oregon, in 1857; Nevada, in 1864; Nebraska, in 1866, and Colo- 
rado, in 1876. 

In most of these the constitutions were prepared by conventions 
called by the territorial legislatures. In California the convention 
was called by the Governor; and the first Constitution of Nebraska 
was prepared by the territorial legislature and submitted to the peo- 
ple for ratification. 

The Nebraska case presents the most extreme test of "legislative 
authority" that has ever occurred, and, indeed, as extreme a test as 
could be imagined. As a general proposition the authority of a terri- 
torial legislature is less than that of a State legislature; and in addi- 
tion to this there were charges of fraud and illegal voting in the 
election, which was declared to have resulted in a majority of only 
100 for the Constitution. The historical facts in the case are stated 
by the Supreme Court of Nebraska as follows: 

"In April, 1864, Congress passed an enabling act providing for the 
election, in June of that year of delegates who should meet in conven- 
tion in July following, for the purpose of framing a constitution, 
with a view to the admission of Nebraska as a State into the Union. 
The sentiment of the people at that time being opposed, evidently, to 
becoming a State, the delegates chosen in the manner provided, upon 
meeting, refused to make a constitution and adjourned sine die. 

"Without any further act of Congress, the territorial legislature of 
1866, submitted a proposed constitution to the electors, to be voted 
on in June of that year, with directions to choose, at the same time, 
legislative, executive and judicial officers for the proposed State. 
The Governor, Secretary of State, and Auditor of the Territory were, 
by the act submitting the instrument, constituted a board of can- 
vassers; and they declared the Constitution adopted by a majority 
of a hundred." 

The legislature, so elected, met and elected two United States 
Senators, who took the Constitution to Washington; and Congress 
admitted the State, after prolonged debate, with provision only that 
the word "white," as a qualification for electors, should be removed 
by the Nebraska legislature. The Nebraska legislature accepted this 



20 

change, without any submission to the people, and the constitution so 
adopted remained in force until replaced by a new one in 1875. 

The facts in the case were quite fully before Congress, and the 
debate there was not as to the validity of the Constitution, but as to 
whether Congress, with the consent of the Nebraska legislature, could 
amend a constitution that had been adopted by the people, by strik- 
ing out the word "white." Congress was at the time engrossed in 
"reconstruction" legislation, and it was considered fatally inconsistent 
to admit Nebraska with an exclusion of negro voters while refusing 
to allow their exclusion in the reconstructed southern States. (Con- 
gressional Globe, July, 1866, pp. 4206, 4213, 4219-22, 4275; January, 
1867, pp. 448-56, 472-80.) 

The action of the legislature in preparing and submitting the con- 
stitution, instead of being treated as invalid, was treated as a guaran- 
tee against the charges of irregularity in the election. Senator Jacob 
M. Howard, of Michigan, former Attorney-General of that- State, 
said: "The whole proceeding for the formation of the State Consti- 
tution took place under and by the authority of the territorial legis- 
lature; they prescribed the rules of the proceeding; they submitted 
the instrument which was the work of their own hands, and a very 
wise and excellent one I believe, to the consideration of the people, 
and the people adopted it as their form of government by a respect- 
able majority. I am not able exactly to deny the power of a terri- 
torial legislature to pass an enabling act for the purpose of taking 
the sense of the people of the territory upon the question of forming 
a State government. I have too high a precedent before me to 
dispute the validity of such legislation. The people of my State, while 
a Territory, through their legislature, passed a similar enabling act. 
an in 1835 called a convention which framed a constitution of govern- 
ment, which was afterward adopted by a vote of the people. I never 
heard it alleged that this territorial statute was invalid." (Congres- 
sional Globe, July, 1866, p. 4210.) 

The bill for the admission of Nebraska was vetoed by President 
Johnson, on the sole ground that Congress had no power to require a 
change in a constitution that had been adopted by the people, and 
the bill was passed over his veto. (Congressional Globe, February 9, 
1867, p. 1121.) The Constitution itself came before the Supreme 
Court of Nebraska on the same question — a case involving the va- 
lidity of a jury of which a negro was a member — and in that case 
the Constitution was assailed at every point. The Supreme Court 
sustained the Constitution, including the amendment made by Con- 
gress and the legislature. In this decision the court gave the broadest 
construction to every point offered against the Constitution, and held 
that it was valid nevertheless. 

Particularly notable is the following statement as to the origin of 
the Constitution: "As is well known, the Constitution was originally 
drafted in a lawyer's office by a few self-appointed individuals. These 
importuned the legislature then sitting to submit it to a vote of the 



21 

people. At the start, then, we must reject the instrument, or admit 
that any one may draft the organic law of a proposed State who 
chooses to volunteer. * * * To say that the people of a Terri- 
tory must frame — that is, write out — their constitution in the first 
instance themselves, is not correct. The document might be im- 
ported from Japan, or fall from the clouds; and if by any subsequent 
action it becomes the constitution of the State, we are bound by it, 
and cannot question where it came from." (Brittle vs. The People, 
2 Nebr., p. 198.) 

This case more than covers the present question in Indiana, but 
before leaving this branch of the subject I would call attention to a 
singular, and generally overlooked, provision of the enabling act 
under which the first Constitution of Indiana was formed. In our 
territorial period the House of Representatives was the only part of 
the legislature elected by the people; and it nominated ten persons 
to Congress, which elected five of these to serve as a "Council," or 
upper house of the legislature. 

The enabling act provides that the citizens of the Territory having 
"the legal qualifications to vote for Representatives in the General 
Assembly of the said Territory, be, and they are hereby authorized 
to choose representatives to form a convention, who shall be appor- 
tioned amongst the several counties within the said Territory accord- 
ing to the apportionment made by the legislature thereof at its last 
session. * * * And the election for the representatives afore- 
said * * * shall be conducted in the same manner, and under 
the same penalties, as prescribed by the laws of said Territory regu- 
lating elections therein for members of the House of Representa- 
tives." 

This body, elected in every respect as a House of Representatives, 
is authorized by the act to meet, and to "first determine, by a major- 
ity of the whole number elected, whether it be or not expedient 
at that time to form a constitution and State government for the 
people within the said Territory; and if it be determined to be expedi- 
ent the convention shall be, and hereby are authorized to form a 
constitution and State government; or, if it be deemed more expedi- 
ent, the said convention shall provide by ordinance for electing repre- 
sentatives to form a constitution or frame of government, which said 
representatives shall be chosen in such manner, and in such pro- 
portion, and shall meet at such time and place as shall be prescribed 
by the said ordinance; and shall then form for the people of said 
Territory a constitution and State government." 

This provision giving to a body elected as an ordinary legislature, 
the power either to adopt a constitution or to call a constitutional 
convention was also used in the enabling acts of Ohio, Illinois and 
Missouri. In all the other enabling acts provision is made for the 
direct election of a constitutional convention, excepting that of Wis- 
consin. In that case the provision was simply that the people might 



22 

adopt a constitution, and the mode of procedure was left to be fixed 
by the territorial legislature. 

V. 

The Legal Objections to the Proposal. ' 

The legal objections thus far offered to the submission of the pro- 
posed constitution to the people are the two offered by Hon. A. C. 
Harris, of the Republican lawyers' committee, at the Senate hearing. 
Mention has been made of the first of these — that the legislature had 
general power, not expressed in the Constitution, to call a constitu- 
tional convention, but not to submit a proposed constitution to the 
people. This is merely a question of the mode of procedure within 
"the legislative authority of the State"; and, as has been shown, the 
legislature is not limited to one mode, but may use, in its discretion, 
any known legislative mode, there being no constitutional restriction 
on this subject. 

His second objection was more plausible, but only so because it 
rests on a confusion of the ordinary and the legal meaning of terms. 
Calling attention to the mode of amendment provided by the Consti- 
tution, and the necessity of following it in amendment, he urged that 
the proposed changes in the Constitution were only "amendments," 
and that the proposed constitution was not a new constitution, but 
an "amended constitution." When asked whether, if a constitutional 
convention were called, and it adopted the proposed constitution, 
word for word, it would be a "new constitution" or an "amended 
constitution," he replied that it would be an amended constitution. 

The question was then asketi by a member of the Senate com- 
mittee: "Suppose two parties make a written contract, and, desiring 
to change it in some particular, they rewrite it, including the change. 
Would that be a new contract or an amended contract?" Mr. 
Harris replied that it would be an amended contract. This position 
was controverted by Hon. Dan Simms, who said it would be a new 
contract; and illustrated his position by a change in a will. He urged 
that if a man had made a will, and, desiring some change in it, had 
it rewritten, it would be a new will; but if the change were added 
as a codicil it would be an amended will. 

Any lawyer will recognize the fact that in this discussion Mr. 
Harris was using words in their ordinary sense, while Mr. Simms used 
them in their legal sense. In common usage the distinction between 
amendment and revision is one of extent. Revision is extensive 
amendment, and it would be impossible to fix a line where one begins 
and the other ends. 

On that basis the proposed constitution is certainly a revision from 
the standpoint of the diversity of its effects. It affects every branch 
of the Government. Even the bill of rights is changed — an unusual 
thing — by the provision for a workman's compensation law, and that 
only in case of necessity shall private property be taken by the public, 



23 

even with just compensation. It changes the qualifications of 
electors. It changes the powers of the executive. It changes the 
terms of State and local administrative officers and provides that 
their salaries shall not be increased during their terms. It changes 
the constitution and powers of the legislative department. It changes 
the constitution of the Supreme Court, and makes possible the abol- 
ishment of the Appellate Court. It changes the mode of constitu- 
tional amendment. If this be not revision, what is revision? 

On that basis this is a new constitution or there has never been 
such a thing as a "new constitution" in the United States since the 
first one was adopted. They are all on the same model. Judge 
Cooley says, "Certain things are to be looked for in all these instru- 
ments"; and he enumerates, (1) the general framework of govern- 
ment; (2) the qualifications for suffrage; (3) the "check and balance" 
system of division of powers into legislative, executive and judicial; 
(4) the recognition of local self-government; (5) the bill of rights. 
(Constitutional Limitations, p. 46.) These are found in all American 
constitutions. Nine-tenths of the provisions of the proposed constitu- 
tion are the same as those of the Constitution of 1816, and those of 
our neighboring States. We retain even the provisions that soldiers 
shall not be quartered in private houses, and that no titles of nobility 
shall be granted, although there is not much more need for them 
than for a provision that witches shall not be burned at the stake. 

On the other hand, from the standpoint of the number of sec- 
tions affected it would not be improper to call it an amended con- 
stitution, for of the 189 sections of the present Constitution only 23 
are changed in any respect, and the remaining 166 are left exactly 
as they now stand. The exact wording is retained because the 
present Constitution has received very thorough judicial construction 
in the sixty years that it has been in force, and it is desirable to 
leave the law in its settled condition so far as it is satisfactory. It 
may be noted also that the re-enactment increases its stability. Some 
constitutional questions have been decided in only one case, and 
some by a divided court. The Supreme Court is at liberty to change 
its construction. But it is a well established judicial rule that when 
a statute, or a constitutional provision, that has been judicially con- 
strued, is re-enacted, it carries the judicial construction with it. (155 
Ind., p. 484.) 

It is unquestionable that exactly the same changes could be made 
in the Constitution by 23 amendments, if the mode of special amend- 
ment could be used. In ordinary language, therefore, this might be 
called an amended constitution, or an amendatory re-enactment of 
the Constitution. But in legal questions words must be used in their 
legal sense (Burns Rev. Stats., sec. 240) and these words have fixed 
legal meanings. The distinction in law between amendment and 
revision, or new enactment, is one of form and not of extent. Suther- 
land explains revision thus: 

"Revision of statutes implies a re-examination of them. The word 



24 

is applied to a restatement of the law in a corrected or improved 
form. The restatement may be with or without material change. A 
revision is intended to take the place of the law as previously formu- 
lated. By adopting it the* legislature says the same thing in effect as 
when a particular section is amended by the words "so as to read as 
follows." The revision is a substitute; it displaces and repeals the 
former law as it stood relating to the subjects within its purview. 
Whatever of the old law is restated in the revision is continued in 
operation as it may operate in the connection in which it is 
re-enacted." (Statutory Construction, sec. 154.) 

But for this legal distinction, the Constitution would be violated 
at every legislative session, for the Constitution of Indiana, like most 
American constitutions, provides that, "No act shall ever be revised 
or amended by mere reference to its title, but the act revised or 
section amended shall be set forth and published at full length." Yet 
acts are constantly amended, without either reference to title or 
setting out the act as amended, through the effect of new laws which 
provide for the repeal of all laws "or parts of laws" in conflict with 
them. The universal rule of law on this subject is that "An act of 
the legislature, not amendatory in character, but original in form 
and complete in itself, exhibiting on its face what the law is to be — 
its purpose and scope — is valid, notwithstanding it may in effect 
change or modify some other law upon the same subject." (24' Ore- 
gon, p. 558.) 

In its amendatory effect, the proposed constitution is of exactly 
the same character as the park law of 1909, the towns and cities law 
of 1905, the tax law of 1891, the election law of 1889, and hundreds 
of other laws, which amend former laws by repealing parts of them, 
but do not set out the laws so amended. It is "new enactment" just 
as they are, although in fact they are almost wholly re-enactment of 
former laws, with amendment in some particulars. To question the 
regularity of their adoption would be to dispute the legality of half 
the statute law of the State. 

VI. 

Sentimental Objections to the Proposal. 

As is natural, the objections thus far offered to the proposed con- 
stitution have come from Republican sources; and this is entirely 
proper, for the welfare of the country is insured by one party watch- 
ing the acts of the other. But it should also be remembered, as a 
matter of fairness, that one political party is very liable to make 
criticisms of the acts of the opposition that are not founded in fact 
or reason; and therefore that in weighing such criticism all unfounded 
effort to make political capital should be excluded, and a fair basis 
for the criticism be called for. 

\ common form of objection has been that voiced by ex-Governor 
J. Frank Hanly, in these words: "I do not doubt that the General 



25 

Assembly has the legal power to make and submit a constitution, 
but that it should do so is ill advised and audacious." But why? 
The legislators are the representatives of the people, and what is 
there "ill advised" or "audacious" in their exercising a legal power for 
the purpose of relieving the people of an intolerable situation. It 
is true that the exercise of the power is unusual, but the situation is 
unusual. Manifestly Governor Hanly does not agree, in his esti- 
mate of the province of a legislature, with Jameson, who says: 

"In any crisis calling for legal authority to act, and where no con- 
stitutional provision, either permissive or restrictive, exists, if the 
legislature take upon itself, within the limits of a wise expediency, 
the power to act, to give the requisite authority and direction, there 
is no department of the Government that can question its right to 
do so; and not only that, but a failure to act would stamp it as false 
to its duty. Having all legislative power within the limits indicated, 
the making of such provisions of law as are needed to save the State 
from inconvenience, loss, or danger, defines precisely the legitimate 
exercise of that power. To do it is its imperative duty. For that it is 
constitutionally competent, and all departments of the Government. 
all agents and representatives of the sovereign, charged with col- 
lateral functions, are bound, within the scope of that power, to obey 
its behests, as the authentic expression of the will of that sovereign." 
(Constitutional Conventions, sec. 375.) 

Another much-reiterated objection is that it is "a one-man con- 
stitution." Taking it in that view, is this not merely an appeal to 
childish prejudice? Every idea must originate somewhere, and rea- 
soning men know it. The members of the first Massachusetts con- 
vention did not reject the constitution which was brought in, all 
written out, by John Adams. They made a few amendments, and 
adopted it. The members of the first Virginia convention did not 
reject the constitution prepared and offered by George Mason. They 
adopted it, and the State retained it for over half a century. Who 
ever objected to the Emancipation Proclamation on the ground that 
it was written by Abraham Lincoln? And yet that document made 
a greater political and social change in the United States than was 
ever made by any constitution. Nobody ever objected to the Declara- 
tion of Independence because it was written by Thomas Jefferson. 
Nobody objects to our excellent State Board of Charities law because 
it was prepared and brought to the legislature by the Rev. Oscar 
McCulloch. No rational man objects to such things .any' more than 
he would think of objecting to the telegraph because it was a "one- 
man invention" of Morse. 

Another objection that has been worked overtime is that the pro- 
posed constitution was "approved by a caucus," and was "adopted in 
one night." There is a legitimate force to this objection, but the 
objection is not altogether accurate. The exact facts are that the 
proposed constitution was submitted to a Democratic caucus, com- 
posed of a majority of the members of both houses of the legisla- 



26 

ture. After being considered by them, and after being published and 
subjected to public criticism for a week, it was amended by a 
second caucus to meet every reasonable objection made to any part 
of it, and was then introduced as amended, in its present form, and 
passed by a party vote. 

The legitimate force of the objection is that as caucuses are com- 
monly used for partisan advantage, and sometimes for bad purposes, 
this should fairly raise a suspicion that such was the case here, and 
the Democrats should be put to prove that the public welfare was 
sought. I further concede that one partisan advantage is sought. 
The Democratic party admits that honest and intelligent suffrage 
is to its advantage; and it has maintained that position in Indiana 
ever since 1889, when it adopted the Australian ballot law and the 
most stringent law ever adopted to prevent vote buying. Its justifica- 
tion for seeking this advantage is that it likewise advances good gov- 
ernment and promotes the general welfare. 

Moreover, the Democratic party in its platforms has repeatedly 
charged that the Republican party has conceded this claim fay 
amending and weakening those laws. It is evident that their opposi- 
tion to a speedy and inexpensive mode of securing intelligent and 
honest suffrage now is based on the knowledge that it will injure 
that party politically. The caucus method was adopted as a political 
necessity because everybody knew that the Republicans would oppose 
any reform in this line at every step. That is common, every-day 
politics. The Republicans made exactly that sort of opposition to the 
adoption of the Australian ballot law, and the new tax law; and their 
papers and speakers made every effort to prejudice the people against 
those laws; but everybody concedes now that they are wholesome 
and proper measures. Nevertheless they could not have been passed 
except as party measures. The only fair and reasonable way of judg- 
ing a measure that is adopted as a party measure is by the merits of 
the measure itself. That test the Democratic party welcomes as to 
the proposed constitution. 

Of all the cheap politics attempted by Republicans, in this connec- 
tion, the cheapest appears in the following editorial paragraph of 
the Indianapolis Star of March 23: 

"Governor Marshall would bar out the alien voter so that the elec- 
torate may be of the pure native quality shown in Adams County, 
Ohio." 

Note the adroit juggle by which "alien" is put in contrast with 
"pure native," on the supposition that citizens of foreign birth or 
foreign descent will be included by the reader with "alien." Note 
the false implication in the reference to the reliably Republican and 
hopelessly corrupt county of Adams, Ohio, whose people, it is said, 
are to a very unusual degree of New England descent. The obvious 
inference from the paragraph is that the average native American 
is more corrupt than the average foreigner, but even the Star does 
not dare to say this directly. No intelligent American believes that 



27 

the native American is excessively honest, but equally none believes 
that he is worse than the average foreigner. Note the bold hypocrisy 
of such a plea from a paper that said editorially of the proposed 
constitution on February 15: "Unqualified approval should be given 
to the limitations upon suffrage." 

Such transparent humbug merely illustrates the low estimate of 
the intelligence of our foreign-born citizens that is commonly shown 
by Republican writers and speakers, and that always has been 
shown by them since the old "Knownothing" party went bodily into 
the Republican ranks after its overthrow by the Democratic party. 
There is probably not one foreign-born American in a hundred who 
believes that an alien — an unnaturalized foreigner — ought to be 
allowed to vote. Why should he? He has shown his appreciation 
of American citizenship by naturalizing; and why should he want 
another put on an equality with him who would not even go to that 
slight trouble to gain full citizenship, in a country that has the most 
liberal immigration and naturalization laws in the world? 

Everybody of ordinary intelligence knows that the question of 
civil rights of aliens, is not one of honesty, but of presumed allegi- 
ance. Indiana is one of the few States that allows them to vote, but 
it has always limited their civil rights for the evident reason that a 
mere sojourner has none of the interests or responsibilities of a 
citizen. Our land law, as revised by the Republican legislature of 
1905, does not allow an alien to hold over 320 acres of land, no 
matter how acquired, for more than five years; and if he attempts to 
do so the excess escheats to the State. The meanest criminal on 
trial in our courts has the right to demand that no alien 
shall serve on the jury that tries him; and if a single alien were 
on the grand jury that indicted him the indictment is invalid. No 
alien can be a representative in Congress or a member of the State 
legislature; but yet we stupidly allow them a voice in choosing these 
officials. 

Another quibbling objection is that the Constitution is. so "sacred" 
that it must not be changed. This was carried to such a length 
that, in the debate on the bill, it was declared that a member who 
voted to submit the proposed change to the people "violated the 
Constitution he had sworn to support." This is of the same char- 
acter as the objection made by the pharisees when the disciples 
"plucked ears of corn" and ate them on the Sabbath; and which was 
met by the instructive rebuke that "the Sabbath was made for man, 
and not man for the Sabbath"; i. e. it was for man's benefit as a day of 
rest, and not for his injury by forcing him to go hungry, or endure 
other hardship. The Constitution was made for the people, and not 
the people for the Constitution. It is to be sacredly observed as the 
will of the people, but itself provides that, whenever the people think 
it does not promote their welfare or happiness, they have the inalien- 
able right to change it in any way they see fit. Instead of violating 
the Constitution, the representatives of the people who voted to 



28 

submit the proposed constitution to the people, voted to give effect 
to this provision; and if anybody violated the Constitution it was 
those who tried to debar the people from their right. 

VII. 

Elevation of the Suffrage. 

The changes at present proposed in the Constitution are greater 
than those made in the Constitution of 1816 by the Constitution of 
1851; and yet they are not greater in proportion than the changed 
conditions of the State in the two periods. 

By the special census of 1815 the population of Indiana was 63,897, 
and the Indian title to two-thirds of the State had not been extin- 
guished. In 1850 the population had increased to 988,416, but it was 
still almost wholly agricultural. The total investment in "manufac- 
turing plants" in 1850 was only $7,750,402, as against over $250,000,000 
now; and this was chiefly in the individual shops of carpenters, black- 
smiths, shoemakers and other tradesmen, with the sawmills and flour- 
mills of the State. 

In 1850 there were only 212 miles of railroad in Indiana, and 124 
miles of that length had been completed in the preceding year. In 
1816 the total State tax levied was $6,043.36; in 1850 it had grown to 
$450,481.76; at present it exceeds $6,250,000. 

In 1816 there was not a town of two thousand inhabitants in Indi- 
ana. In 1850 there were only nine that had more than two thousand 
people. The largest of these was New Albany, with 7,786; and it was 
closely followed by Madison, with 7,714, and Indianapolis, with 
7,686. Then came Lafayette, with 5,997; Evansville and its suburb, 
Lamasco, with 4,587; Ft. Wayne, with 4,201; Terre Haute, with 3,824; 
Lawrenceburg, with 2,604, and Logansport, with 2,194. 

Of the changes made, and proposed, in the Constitution, none are 
more closely connected with these conditions than those affecting 
suffrage. The Constitution of 1816 restricted suffrage to white men, 
twenty-one years old, who were citizens of the United States, and 
who had resided in the State for one year. The Constitution of 1851 
reduced the residence requirement . to six months, and extended 
suffrage to foreigners who had lived in the United States one year, 
and had officially declared their intention to become citizens, or "had 
taken out their first papers," as it is commonly expressed. 

The avowed purpose of these changes was the encouragement of 
immigration to the State. There were a few who protested against 
this — who pointed out the wrong of giving to people who were not 
citizens of the United States the suffrage rights of citizens of the 
United States — for they all vote in national elections as well as 
in State elections; but local interests prevailed. The State had piled 
up over $15,000,000 of debt by its internal improvement ventures. Its 
chief visible assets were its unsold "canal lands," and Congress had 
added a million acres of "swamp lands" by the act of September 28, 



29 

1850. Of the 23,000,000 acres of land in the State, only- 12,585,678 acres 
were reported "in farms" in 1850, and of these less than 5,000,000 acres 
were improved. The State needed population, and the people were 
determined to have it. Easy and speedy access to full citizenship 
was believed a strong inducement to immigration, and it was pro- 
vided. 

There was another reason for this in 1851. The American people 
have always given warm welcome to foreign exiles who were victims 
of religious or political persecution, and have usually found them 
most desirable citizens. The republican revolutionary movements of 
Europe in the forties had awakened their warmest sympathy — a 
sympathy which was manifested a few years later, in the enthusiastic 
receptions to Kossuth. In particular, the German revolution of 1848 
had sent to this country a large body of exiles who were men of 
intelligence and thoroughly imbued with the spirit of progress — so 
much so that they were, in ridicule, called "weltverbesserers," or 
world-reformers, by their opponents. 

But while welcoming this immigration, the existing sentiment of 
the time was equally shown by a rigid prohibition of negro immi- 
gration. The thirteenth article of the Constitution not only pro- 
hibited any negro or mulatto from coming into the State, but also 
made it a penal offense to "employ such negro or otherwise encourage 
him to remain in the State." 

It also made any contract with any such negro immigrant void, 
and this was enforced to the extent of making void the marriage 
contract of a negro with a negro woman who came into the State 
after the adoption of the Constitution (7 Ind. 389). This article of 
the Constitution beoame a dead letter during the civil war; and was 
removed altogether in 1881 by the amendment which substituted for 
it the restriction of municipal debt to 2 per cent, of the assessed 
value of taxable property. 

In the experience of Indiana since 1851, there has been a vigorous 
growth of sentiment, especially in the last twenty-five years, that we 
have made suffrage too cheap. We have made it so cheap that 
men do not value it as they should. Thousands regard it as an asset 
rather than as a privilege, and stand ready to barter it for a mess 
of pottage. They are worse than Esau, for he sold his birthright 
when pressed by hunger; and the appalling revelations in Adams 
County, Ohio, and at other points, has shown the terrible menace to 
popular government in this condition. 

Every sane man knows that popular government without an intelli- 
gent and honest suffrage is a ghastly farce. If the voters be ignorant, 
it is the government of those best able to delude them. If the voters 
be corrupt, it is the government of those who have the money to 
buy them. If the voters feel no interest in their government, they 
easily fall into one or both of these classes. The evils of admission 
to the suffrage of foreigners who come here with no intention of 
making this country their home, but only to accumulate enough 



30 

money to attain 'ease on return to their native lands, was first im- 
pressed on Americans by the large body of Chinese immigrants. In' 
recent years the impression has been strengthened by thousands of 
Europeans who have come here with a like purpose, and who have 
•absolutely no interest in the welfare of the country beyond their 
own present advancement. If a man be here solely to accumulate a 
little money, why should he not sell for money a vote that is almost 
thrust on him? Manifestly, if we are to have good government, the 
suffrage must be restricted in the first place to those who can reason- 
ably be supposed to feel some interest in good government. 

There is another restriction that should be imposed unless we dis- 
regard utterly the very corner-stone of our governmental system. It 
was declared in the "forever unalterable compacts" of the ordinance 
of 1787 that "morality and knowledge are necessary to good govern- 
ment." We declared in our Constitution of 1816 that "knowledge 
and learning, generally diffused throughout a community, are essen- 
tial to the preservation of a free government"; and we repeated the 
declaration in the Constitution of 1851. It is on this principle that 
our free school system is based, for great as is the benefit to the 
individual educated, the justification of taxation for education is the 
benefit to the community of enlightened suffrage. 

The people of Indiana are paying more than $8,000,000 a year to 
maintain free schools. We have a compulsory education law requir- 
ing the attendance at school of children between the ages of seven and 
fourteen years. We have truant officers to enforce their attendance, 
and nenalties for failure to attend. We have provided that if chil- 
dren lack proper books or clothing these shall be furnished at public 
expense. • 

And yet we say to the -boy who manages to grow up under this 
system without learning to read and write: "We will reward your' 
evasion of the law by giving you the highest privilege of citizen- 
ship." We do this although such a boy must necessarily have some 
quality that unfits him for good citizenship. Could anything be more 
completely inconsistent and stupid? There have been legitimate 
excuses for illiteracy in the past. There is absolutely no excuse for 
the Indiana boy of today who grows up illiterate. 

Illiteracy has become a special menace to good government through 
the opening it offers for the corruption of voters. Indiana has made 
an earnest effort to prevent bribery in elections. The purpose of the 
Australian ballot law is to prevent the voter from proving how he 
voted to the man who buys his vote. He can state how he voted, but 
can only give his word. 

The one weak point in the Indiana law is the permission to the 
illiterate voter to have his ballot marked by the poll clerks; and this 
is allowed to make the law constitutional. The qualifications of 
voters are fixed by the Constitution, and, under the decisions of the 
courts, can not be added to nor taken from by law, either directly 
or indirectlv. 



31 

As illiterates are allowed to vote, by the Constitution, the right 
could not be taken from them by providing an election system under 
which they could not vote. But it is notorious that this provision is 
grossly abused, and is made a common mode of vote buying; the 
poll clerk, in violation of his oath, certifying to the purchaser how the 
voter has voted. The only apparent mode of removing this evil is 
to stop admitting illiterates to suffrage. 

The remaining restriction on suffrage that is proposed is the 
requirement of the payment of current poll tax, and poll tax of the 
year previous to the election. The provision makes the poll tax 
separable from other taxes, in order to avoid any hardship on per- 
sons who for temporary reasons are unable to pay their property 
taxes. For all practical purposes the poll tax is a suffrage tax, 
although men more than fifty years of age are exempt. It is the only 
tax payable by the voter unless he owns visible property — his only 
contribution to the cost of government. The requirement of its 
payment in a number of the States is on the theory that a man who 
is not enough interested in his government to pay his poll tax ought 
not to have any voice in the government. 

The chief objection to it is that in some States the political parties 
pay poll taxes as a part of the process of buying votes. The proposal 
of the constitution is to avoid this by making all poll taxes payable in 
the spring, before campaigns begin. If this should fail to prevent 
the vote buying there would at least remain the fact that the amount 
so paid would go into the public treasury instead of the pocket of the 
corrupted voter. 

It will be noted that these restrictions are wholly of future applica- 
tion. It is not proposed to disfranchise any present voter; but to 
allow all legal voters to register up to November 1, 1913, after which 
the educational test is to be put in operation. This delay is allowed 
to bring about the ultimate adoption of the reform. There were 
more than forty thousand illiterate voters in Indiana by the census 
of 1900, and there are many more now. If it were proposed to dis- 
franchise them, they would probably vote against the constitution, 
and defeat it; but they would have no personal ground for objec- 
tion to a restriction applying to the future. 

It is worthy of note that at present Indiana is not among the 
progressive States in the matter of suffrage. Thirty-five of the States 
of the Union admit only citizens of the United States as voters. The 
States which allow voting on declaration of intention are Alabama, 
Arkansas, Colorado, Indiana, Kansas, Missouri, Nebraska, Oregon, 
South Dakota, Texas and Wisconsin. Of these only Indiana, Kansas, 
Oregon and Nebraska admit the foreigner to suffrage on less than 
one year's residence in the State. 

'The educational qualification for suffrage is a comparatively recent 
advance, though in the Colonies there were property and other quali- 
fications that were largely equivalent to the educational qualification. 
In the early years of the republic there was a general movement 



32 

toward "manhood suffrage," which took away most of the bars, 
though at the same time they were raised against the negro. 

Prior to the revolution negroes were allowed to vote in all the 
Colonies but Georgia and South Carolina. Between 1792 and 1834 
negro suffrage was abolished by Delaware, Maryland, Virginia, New 
Jersey, New York and Connecticut. North Carolina followed in 1835, 
and Pennsylvania in 1838. The only States with educational qualifica- 
tions prior to 1889 were Connecticut, which adopted them in 1855, 
and Massachusetts, which adopted them in 1857. 

In 1889 Wyoming led off with provision for educational qualifica- 
tion. The example was followed by Mississippi in 1890, Maine in 
1893, California in 1894, South Carolina in 1895, Louisiana in 1898, 
Delaware and North Carolina in 1900, Alabama and Virginia in 1901, 
and Georgia in 1908. In the Southern States there were discriminat- 
ing provisions which allowed suffrage to ignorant whites while they 
denied suffrage to ignorant negroes, but these were all of temporary 
application, and at the present time the restriction applies to all new 
voters, white and black alike, except in Georgia, where the discrim- 
ination ends on January 1, 1915. 

The growth of the sentiment has been shown in Congress by pro- 
visions for our insular possessions. In Hawaii the voter must be 
able to read and write either the English or the Hawaiian language. 
In the Philippines he must be able to read and write either English 
or Spanish, but exemption is given to persons with $250 of property 
and those who held "substantial oftice" under the Spanish regime. 
The Foraker act of 1900 gave "manhood suffrage" to Porto Rico, but 
in his recent report on Porto Rican conditions, Secretary of War 
Dickinson recommended the adoption of educational or property 
qualifications, and this was indorsed by President Taft, who said: 
''It is much better, in the interest of the people of the island, that 
the suffrage should be limited by an educational and property quali- 
fication." (House Doc, 615, second session Sixty-first Congress, and 
Cong. Record, vol. 45, p. 1199.) Is there a sane person in the 
United States who doubts it? And if it be a good thing, is there 
anything too good for Indiana? ' 

VIII. 

To Eliminate the Gerrymander. 

If any Hoosier whose memory runs back over the last forty years 
were asked what local questions had caused the greatest political 
controversy in that period, he would probably answer, on reflection, 
that they were the gerrymander and the appointing power. He 
would recall the days when Thomas A. Hendricks and Benjamin 
Harrison alternately canvassed the State, denouncing, respectively. 
Republican gerrymanders and Democratic gerrymanders. 

He would recall how Governor Hovey was roused to fury by a 
Democratic legislature's appropriation of some of his appointment.-. 
He would recall how both questions went to the courts, which sue- 



33 

ceeded in putting both in such a condition that the wayfaring man., 
even though a lawyer, can not tell just what the law is. It is the 
effort of the proposed constitution to eliminate these two causes of 
trouble as completely as possible. 

The obvious cause of the gerrymander is the irrational basis of 
representation provided by the present Constitution. It requires an 
enumeration every six years of ''the white male inhabitants over 
twenty-one years of age" (the word ''white'' removed by implied 
repeal) and the apportionment of Senators and Representatives 
"among the several counties, according to the number" of voters 
enumerated. The adoption of this system is probably an illustra- 
tion of the force of American habit, for there was never any good 
reason for it. 

The enumeration is a needless expense, and affords opportunity 
for both mistake and fraud, while a much more reliable enumeration 
is provided by the United States census. The members of the legis- 
lature do not represent voters only, but the entire population of their 
districts. The idea of personal or numerical representation has only 
a secondary place in American theories of government. The Amer- 
ican axiom that '"taxation without representation is tyranny" does 
not mean the taxation and representation of the individual. There 
have always been thousands of individuals who have been taxed 
without having an}- voice in government. It means, and has always 
meant, that the taxation of a community without representation is 
tyranny. - 

The natural community unit of representation in Indiana is the 
count}-, and this fact is recognized by the Constitution itself, both in 
the provision for apportionment "among the several counties," and 
by the provision that "no county, for senatorial apportionment, shall 
ever be divided." By universal consent this last rule has always 
been applied also to representative apportionment, if, indeed, that be 
not an implied requirement of apportionment "among the several 
counties." The courts, the land record system, the tax system, the 
jail system, the school system and to a large extent all the remainder 
of local government, outside of city and town government, is on a 
county basis. As a natural result many other things follow the same 
rule and we have churches, bar associations, medical associations and 
numerous societies of one kind and another, organized on a county 
basis. 

The net result of all this is that the people of each county have a 
community of public interests, independent of and often differing 
from those of any other county. As a mere matter of justice and 
propriety, under the American theory of government, such a com- 
munity ought to have a representative in the legislature. 

This is. with one exception, the system in force as to the National 
House of Representatives, each State having one Representative, 
and the larger ones additional Representatives for quotas of popula- 
tion. The difference is that the congressional quota is fixed by Con- 



34 

gress, and is a periodical cause of jugglery and squabbling. The 
proposed Indiana quota is a fixed quantity, ascertained by dividing 
the total population at the last national census by ninety-two (the 
number of counties in the State) or, in other words, the average 
county population of the State. This removes any possibility of dis- 
crimination in apportionment for representatives, and corrects an 
injustice that has long been done to the smaller counties, which have 
been practically disfranchised by throwing them into "joint districts" 
with larger counties to "kill their vote." 

There is nothing to prevent this in the Constitution or in the 
decisions of the Supreme Court, and therefore the Democrats usually 
fasten a small Republican county to a big Democratic county, and 
the Republicans, vice versa. If there be no satisfactory big county 
contiguous, the deficiency is supplied by making a "shoestring dis- 
trict" of "unrepresented surpluses," to come within the judicial rul- 
ings. Everybody who has paid any attention to practical politics 
knows the process. Everybody knows it is essentially wrong. Every- 
body "just laughs" and takes the party advantage that the law 
allows. 

It is to be regretted that an equally efficient remedy could not be 
applied to senatorial apportionment. The only one that has ever been 
suggested is to divide the State into five districts, and elect ten Sen- 
ators from each by proportional representation. This would pre- 
vent gerrymandering; but it is met by the practical objection that it 
would force a candidate for the Senate to canvass a district twice as 
large as a congressional district, and nobody would want to be a 
candidate for Senator. 

For this reason the proposal was dropped, and the regulation of the 
election of Senators left as open as possible in the hope that future 
ingenuity might suggest some mode of senatorial apportionment that 
did not admit of abuse. 

In justice to legislators it may be mentioned here that not every 
apportionment denounced as a gerrymander is necessarily one in 
fact. It is a mathematical impossibility to create equal districts of 
counties varying altogether in size, and the fairness of the approxima- 
tion to equality is a question of judgment only. It is impossible to 
make an apportionment which is not subject to plausible, though 
possibly unjust criticism; though usually there is some ground for 
criticism. It is like the old problem of dividing thirteen apples 
equally among three boys, without cutting an apple; which the judge 
solved by appropriating the thirteenth apple to himself and giving 
the boys four each. • 

It may also be mentioned here that the proposed representative 
apportionment would not make a House of Representatives of 130 
members, as seems to be assumed in some quarters. That number 
is made a maximum to cover possible future expansion. By the 
national census of 1910 the population of Indiana is 2,700,876. Divid- 
ing this by ninety-two we have a representative quota of 29,357. This 



35 

would require 44,035 for two Representatives and 73,392 for three 
Representatives. 

Under it, the counties having more than one Representative, with 
their population, are as follows: Marion (263,661), nine Representa- 
tives; Allen (93,386), Lake (82,864), St. Joseph (84,312), Vanderburg 
(77,438) and Vigo (87,930), each three Representatives; Delaware 
(51,414), Elkhart (49,008), Laporte (45,797) and Grant (51,426), each 
two Representatives. This would make a total of 114 Representa- 
tives. The number would presumably increase at the next census, 
but not as rapidly as might be imagined, because the size of the 
quota would increase with the increase of population. Under the 
census of 1900 a similar apportionment would have given 109 mem- 
bers. The increase for the last ten years is five members, and there 
is no apparent reason why it should exceed that in the next ten 
years. 

The abuse of the .appointing power by the early legislatures was 
one of the chief evils sought to be remedied in the Constitution of 
1851. The Constitution of 1816 put almost unlimited power in the 
legislature, partly because the legislative department was the special 
representative of the people, and partly because the new State was 
too poor to undertake any special elaboration of government. The 
legislature elected part of the State officers, and exercised almost 
unlimited control over local affairs. 

With the development of party government came the tendency to 
take advantage of this power, and it was exercised to an extent 
that would cause general revolt today. It was so easy, for example, 
to abolish the office of auditor of Clark County and create the new 
office of auditor of the County of Clark, incidentally electing some- 
body to the new office; and this very sort of thing was done in 
several cases. 

The Constitution of 1851 made all of the principal State and County 
officers elective by the people and gave the Governor power to fill 
vacancies. But it recognized the probability of new offices being created 
and provided by section 1, of article 15: "All officers whose appoint- 
ment is not otherwise provided for in this Constitution, shall be 
chosen in such manner as now is, or hereafter may be, prescribed 
by law." 

The result of this was that the legislature could take any such office 
whenever it desired, for it made the law, and if the Governor vetoed 
it the measur^ could be passed over his veto by a majority vote. It 
was this situation that brought about the troubles of Governor Hovey, 
and the lesson which that controversy should teach is that the 
appointing power should be fixed definitely and permanently. 

No more certain cause of trouble can be provided than to leave 
unsettled a question that involves the possession of political spoils. 
It is not so important how it is settled as that it should be settled be- 
yond question. "Lead them not into temptation" ought to be a central 
thought of every constitution. But, as a matter of principle, it is 



36 

generally conceded that the appointing power is properly an execu- 
tive or administrative function, and that it should not be exercised 
by the legislature. One of the strongest arguments for the popular 
election of United States Senators is the occasional interference of 
that function with the business of legislation, which is sometimes 
suspended for months by a "deadlock." The proposed constitution 
removes this evil altogether, excepting, of course, the election of 
United States Senators and the legislative officers. 

IX. 

Initiative, Referendum and Recall. 

The provision of the proposed constitution permitting the initia- 
tive, referendum and recall to be adopted by the legislature, on 
petition of 25 per cent, of the voters of the State, has attracted much 
criticism from both friends and enemies of the system. 

It should be kept in mind that this discussion refers to the "manda- 
tory" initiative and referendum, i. e., allowing a small minority of the 
voters to submit any measure to a vote of the people, without any 
intervention of the legislature. Aside from this, we have the freest 
initiative imaginable in Indiana. Any one can get a bill introduced 
in the legislature "by request." 

We have always had the referendum as to amendments to the 
Constitution, and there has been a large increase of its use in ordinary 
matters. 

In Indiana, as in all the other States of the Union, the strictness 
of the former enforcement of the rule against the "delegation of 
legislative powers" has been much relaxed by judicial* construction. 
It is a far cry from the judicial opinion in Maize vs. The State (4 Ind., 
p. 342, 1853) to that in The State vs. Gerhardt (145 Ind., p. 439, 1896), 
and many questions are now commonly referred to the decision of 
the people that could not have been so referred sixty years ago. 

The most notable criticism of this proposed section of the consti- 
tution comes from Senator Jonathan Bourne, of Oregon, who is 
perhaps the most prominent advocate of the initiative and referendum 
system in the country, and who is quoted in the Indianapolis Star of 
February 16, as saying: 

"That provision was written into the proposed State Constitution 
by the enemies and not the friends of the initiative, referendum and 
recall. Either that is true or those who designed it do not know 
a workable initiative, referendum and recall principle when they 
see it." 

Un(Jer the Oregon Constitution 8 per cent, may initiate legisla- 
tion, and Senator Bourne says "it is practically impossible to get 25 
per cent, of the voters to act." 

"Nothing but a great impact, such as a tremendous scandal in 
public office, would arouse 25 per cent, of the electors," he said, "and 
if they should get aroused they would find that the legislature could 



peremptorily refuse to act and 'they would have no recourse. I have 
never known an initiative and referendum provision like this. The 
injection of the legislature as an intermediary makes it unique. It 
is worse than nothing." 

An even more radical position was taken by James Xoel, of the 
Republican lawyers' committee, which appeared against the proposed 
constitution before the Senate committee. He urged that the legisla- 
ture should have power to adopt the system without any request 
whatever from the people. 

But why should there be a radical and fundamental change in our 
system of government if it be "impossible to get 25 per cent, of the 
voters to favor it"? Why should a legislature, not elected on that 
issue, but of which possibly a majority — a total of seventy-seven men 
or more — be authorized to make such a change, without a substan- 
tial expression of sentiment by the people? Is that government by 
the people? 

In Indiana we have always held that government by the people 
meant government by a majority of the people — not by a minority. 
It is true that in elections the majority govern, even though they 
be a minority of the whole electorate; but that is only because it is 
impossible to get all the voters to vote, and it is necessary, to have 
any government at all, that those voting at an election should decide, 
But when it comes to law-making, where it is possible to have a 
majority of all the representatives of the people, we have provided 
in our Constitution that "a majorit}- of all members elected to each 
house shall be necessary to pass every bill or joint resolution." 

The statement of Senator Bourne calls attention forcibly to the 
most serious objection to the initiative and referendum system, which 
is its tendency to minority rule. This is due to the fact that a large 
proportion of the people will not vote at all on legislative questions. 
In Indiana this is notoriously true. The present necessity for the 
adoption of a new constitution arises from the fact that we have a 
"pending" amendment to the Constitution which has been voted on 
three times without securing a majority of the electors either for or 
against it; and therefore remains as a bar to any further amendment 
under the special amendment system. This experience is not peculiar 
to Indiana. 

In 1900, after a full review of the facts, Dr. Oberholtzer, who is 
one of the most prominent advocates of the initiative and referendum 
in America, said: 

''So far as our experience has already gone in the United States, 
a number of glaring defects have been exhibited by the people in their 
role as lawmakers. The most impressive of these is their strange 
apathy, even in the face of great issues. They as a mass have so 
little interest in legislative subjects that only a small percentage will 
attend the polls for special elections, and at general elections when 
individual candidates are to be chosen, though the proposition be 
printed on the same ballots with the names of the candidates a large 



38 

proportion of the voters will not put themselves to the slight trouble 
of placing a pencil mark under the word 'Yes' or 'No.' The con- 
clusion is unavoidable that the people considered as a body do not 
know anything, nor do they care anything, about the merits or 
demerits of a particular law. * * * It is true that the largest 
possible vote is never polled for candidates, but, speaking roughly, 
twice as many electors vote for individuals as vote for measures." 
("The Referendum in America," page 411.) 

Nor is this experience limited to America. We hear a great deal 
about the success of the system in Switzerland, but, writing of that 
in 1907 % Arthur Sherburne Hardy says: 

"One of the strongest claims made for the referendum was that it 
would silence the protestations of the minority by showing where 
the real majority is. This claim the remarkably large number of 
abstentions would certainly seem to negative. In the case of so 
important a measure as the constitutional amendment of July 7, 1891, 
establishing the initiative, less than one-half the registered voters 
(641,692) participated, the affirmative and negative votes being 183,029 
and 120,599, respectively. Only when a fine is imposed for failure 
to vote is the voting general. For example, in two communes of the 
Canton of Zurich, where voting is obligatory, * 94 and 97 per cent, 
of the voters took part, while in three communes where voting is not 
obligatory, only 19, 14 and 10 per cent, voted on the same measure. 
From 1869 to 1888, in sixty-eight measures submitted to the people 
in Berne, the average abstentions were 45 per cent. In Bale-Cam- 
pagne, from 1864 to 1881, of ninety-four popular votes, seventeen were 
altogether without result because an absolute majority, as required, 
took no part whatever." (Independent, June 13, 1907.) 

The experiment was tried in Canada in 1898 in a special vote on 
the liquor question under "The Prohibition Plebiscite Act of 1898." 
The election covered the entire Dominion of Canada, and cost the 
government about $300,000. A small majority favored prohibition, 
but less than 30 per cent, of the voters went to the polls. A Canadian 
correspondent of the New York Evening Post wrote, at the time: 
"In some cases half the electorate polled, but these were exceptional. 
From one-fourth to a third was a more common proportion, and in 
some districts it fell as low as one-eighth. Many of those who did 
vote seemed to wander into the polling stations more by accident 
than by set purpose." 

In November of this same year, 1898, it is said that "the people" 
of South Dakota adopted the initiative and referendum system. 
What actually happened was this: The question was submitted as a 
constitutional amendment, and was adopted by a vote of 23,816 to 
16,483. But at the same election there were 75,159 electoral votes 
cast, and this was a light vote, for at the presidential election two 
years earlier the vote of the Sta»te was 82,777. A plurality of less than 
7,500 with over 50 per cent, of the people not voting, fastened the 
system on South Dakota! Is that government by the people? 



39 

But we are told that it is different in Oregon; and it must be 
admitted that the popular interest shown in legislation there exceeds 
any manifested in any other part of the known world. The cause 
of this is not known. It may be due to the fact that the citizens 
of that State have nothing to do but kill the bugs on their apple 
trees — an occupation which leaves their minds free for the considera- 
tion of legislative problems. If this be the reason, their experience 
would be of no value in Indiana, where the mind of the average 
citizen is always absorbed in working out the plot for his next' novel. 
But even its example is not conclusive. In his great speech on 
"'The Bliss of Oregon," delivered in the national Senate on May 5, 
1910, Senator Bourne set out the votes of the State on referendum 
questions for three years. In 1904 two questions were submitted, on 
one of which 72,559 votes were cast, and on the other (a local option 
liquor law) 83,514 votes. The average of the two is 78,036, which is 
86 per cent, of the total electoral vote (90,154) cast that year. In 
1906 there were eleven questions submitted, and the average vote on 
them was 74,102, which was 76 per cent, of the total electoral vote 
(96,715) cast in that year. In 1908 there were nineteen measures 
submitted by referendum, and the average vote on them was 86,435, 
which is 74 per cent, of the total referendum vote (116,614) as shown 
by the official returns from the poll books. 

In 1910 there were thirty-two questions submitted, and the official 
returns of the poll books show that 120,248 persons voted on them. 
The average vote on each question was only 84,316, or 70 per cent, 
of the total vote cast. The explanation of this is, of course, that 
some of the electors voted on one question and some on another. 
Of the measures submitted, eleven were constitutional amendments. 
Of these, seven were rejected and four adopted. Of the four adopted, 
not one had a majority of the 120,248 electors voting. The heaviest 
voting was on the prohibition amendment and the prohibition law, 
both of which were defeated by large majorities. On each of these 
the vote exceeded 100,000, and they were the only ones on which 
so large a vote was cast, excepting the city local option measure, 
which was carried by a small majority. The next highest vote was 
on the woman's suffrage amendment, which was defeated for the 
fifth time since Oregon adopted this system, the vote being 35,270 
to 59,065. 

Possibly this experience is too brief for conclusive judgment, but 
a decrease of 19 per cent, in the referendum vote in six years would 
seem to indicate that the people of Oregon are tiring of the practice. 
They have already reached the point where constitutional amend- 
ments and important laws are being adopted by minorities. . More- ; 
over, the heavy vote is apparently called out by the desire to defeat- 
objectionable measures; and why should small but aggressive minor- 
ities have the power to put the majority on the defensive, year after 
year, to protect the laws and institutions they wish to preserve'?' 
One of the objects of our National Constitution is "to preserve 



40 

domestic tranquility." Possibly it might be worth while to try some- 
thing on that line in Oregon. 

Possibly the results in Oregon are satisfactory to Senator Bourne 
— there is no reason why they should not be, personally. But I con- 
fess that they leave me still open to conviction. It is plainly evident 
that the average American still clings to the representative system, 
so far at least as general lawmaking is concerned. He looks on the 
initiative and referendum much as he would on any proposal to hire 
some one to do a piece of work for him, and to reserve the right to 
do the work himself. He hires legislators to make laws, and reserves 
only the right to object if the laws do not suit him. However, if 
the people of Indiana should ever want to try this system, they have 
the right to do so, and certainly would do so. 

X. 
Workmen's Compensation Law. 

Of the changes proposed, only two affect the part of the Constitu- 
tion known as "the bill of rights." The first of these permits the 
legislature to enact "a workman's compulsory compensation law for 
injuries occurring in hazardous employments." This is a change 
favored by practically everybody concerned. In Indiana, as in the 
rest of the civilized world, the enormous development of industries 
since the present Constitution was adopted, with the introduction of 
rapid transit, steam and electric power, high explosives, and com- 
plicated machinery, has made accidents a fixed feature of a large part 
of industrial employment. Experience has convinced all intelligent 
inquirers that it is advantageous to both employers and employes 
to settle for injuries without litigation if possible. The only obstacle 
to legal provision for this is the constitutional restriction of remedies 
to "due course of law." 

There is no great difference of opinion as to what are "hazardous 
employments." The model "Workmen's Compensation Bill for Uni- 
form State Legislation," proposed by the National Civic Federation, 
limits them to employment "in or about a railway, factory, mine or 
quarry, electric, building or engineering work, general or terminal 
warehouse, grain elevator, malthouse, coal yard, lumber yard, stock 
yard, building material yard, or shipyard." This bill does not apply 
to an injury which "does not disable the workman for a period of 
at least two weeks from earning full wages." The proportion of 
accidents in such occupations does not vary materially on the average, 
throughout the country. In Indiana the reports of the coroners to 
the Bureau of Statistics for the year 1910 show a total of 1,113 fatal 
accidents, of which 391 were on steam railways, 109 on interurbans, 
and 29 on street railways — "all others," 684. No other figures for 
1910 are at hand, but for 1909 the Department of Inspection reported 
45 fatal and 305 serious accidental injuries in factories; and the Mine 



41 

Inspector reported 50 fatal, and 533 permanent and serious accidental 
injuries in mines in this State. 

The percentage of accidents is so fixed that accident and liability 
insurance have become well-established industries, based on averages 
as reliable, mathematically, as those of life and fire insurance. John 
Mitchell stated the fact in a very forcible way, in his address to 
the Industrial Welfare Conference at New York, in November, 1909, 
in these words: "It is not to our credit that in America, in this 
country we all love, more men are killed in industry, more men, 
both in the aggregate and in proportion to the number employed, 
than in any other country in the world. In my own trade four men 
are killed for each one killed in other countries. In my trade, tomor- 
row, not less than twenty men must die. Every day the dawn 
breaks, from ten to twenty men who enter the darkness of the mine 
return no more to their wives and loved ones. This is a problem — 
a living problem — that cries aloud for solution. I am heartily in 
favor of workmen's compensation. I believe that our laws should 
be so amended, or that such contracts should be made between 
employers and workmen, that when a man is injured or a workman 
is killed, the money needed for the relief of the injured workman or 
for the relief of the family of the workman who has been killed, 
should be available at once; not five or ten years after the death 
or accident occurs." . 

This is the practically unanimous position of labor organizations, 
and employers on a large scale take largely the same position. In 
the agitation of this question in Indiana, one of the strongest pre- 
sentations of the merits of the system was the address before the 
State Bar Association, on July 7, 1909, by Hon. A. C. Harris, whose 
extensive legal experience and opportunity for personal observation 
of the system while Minister to Austria, make his views of more 
than ordinary weight. He gave the following statement of the pay- 
ments of damages for accidents, in one year, by seven railroad com- 
panies, doing business in Indiana, which he had obtained from friends 
connected with these companies: "A," $307,117.88; "B," $337,866.28; 
"C" $224,950.86; "D," $405,815.81; "E," $109,682.86; "F," $493,290.65; 
"G," $284,127.22. As is commonly known, all railroad companies, and 
many other large corporations, have their attorneys, claim agents, and 
adjusters, who endeavor to make compromise settlements for dam- 
ages whenever accidents occur; and Mr. Harris stated that some' of 
these companies had paid "more on settlements than by way of 
judgments." 

In addition to this effort to avoid litigation, many large employers 
take out liability insurance to meet the cost of damages for accidents. 
In 1910 the State of Illinois established a commission to investigate 
this question, with a view to legislation, which did its work very 
thoroughly, and presented a valuable report. Among its sources of 
information was the Illinois Manufacturers' Association, 141 of whose 
members reported to the commission. Of these, 138 took out liability 



42 

insurance, for which they paid a total of $100,715.95 a year. In addi- 
tion to this, 17 of the companies reporting contributed to "mutual aid 
societies" to the extent of $19,539.91 a year; and 84 companies fur- 
nished medical services to employes, costing them $20,841.95 a year. 
The commission showed that the total cost to the companies for all 
the accidents that occurred, under the proposed compensation law, 
would have been $74,073.62, or $26,642.33 less than they were actually 
paying for liability insurance alone. The amounts paid for mutual 
aid societies and medical services were not taken into consideration, 
because these also -covered "sick benefits," which could not be sep- 
arated from the amounts paid for "accident benefits." 

This difference in cost is obviously due to the fact that the com- 
pensation plan is one of direct settlement, which does away with the 
"middleman" in the shape of insurance companies. Of necessity the 
expense and profits of the insurance companies must come from the 
insured. In reality the compensation plan is a form of direct insur- 
ance, and in a number of the countries that have adopted it the sys- 
tem is one of direct insurance in form as well as in theory. 

Under our "due course of law" system, the workman has a similar 
expensive middleman in the lawyer. Not usually being able to pay 
a direct fee, the workman commonly agrees on a contingent fee of 
one-third to one-half the amount recovered, and this usually applies 
to settlements out of court. In 17 cases of settlement without trial 
reported by the Illinois commission, out of $38,240 paid by the em- 
ployers, $11,085, or nearly 30 per cent, went for attorneys' fees and 
costs. In addition to the cost the workman has the hazard of 
losing altogether through some legal technicality, even if he has a 
meritorious case. Mr. Harris estimates that "at least one-half of the 
cases appealed are reversed, not on the evidence, but from some 
mistake of somebody in the long course of procedure, extending^ rom 
the complaint to the petition for a rehearing." 

Even more serious to the workman and his family is the delay of 
settlement, which not uncommonly reaches from two to five years, 
leaving them without relief when it is most needed. And here is 
where the public becomes directly interested, because the situation 
frequently forces an appeal for public aid... Of 147 families thus 
forced to ask public aid in Cook County, Illinois, the Illinois com- 
mission found that 104 families had no income whatever after the 
injury of the wage-earner; and in the remaining cases there was 
none but a scant pittance earned by the wife and children. It is 
the consideration of the public burden* that has caused the com- 
pulsory insurance legislation of Europe. 

In view of the unquestionable facts, Mr. Harris was justified in the 
following prediction: "When the people at large come to fully 
understand that in all public utility cases, and largely in all cases of 
negligence, in the end they pay the verdicts; and that these are dis- 
sipated; and that they more or less supply by public and private aid 
the means to support disabled workmen and their families, it will 



43 

not be long until they find a way to relieve themselves on account 
of any constitutional embarrassment, and to reach better results than 
now prevail. The people make the laws as they want them. Just 
when, or in what form this advance will come, one cannot at pres- 
ent foretell. But in time it will come, and abide." The opportunity 
to remove the constitutional embarrassment is now before the people 
of Indiana. 

His view is confirmed by the general- action where a constitutional 
provision did not prevent it. Great Britain, from which we took the 
Magna Charta provision for "due course of law," was not impeded 
by it, because Parliament can change the British Constitution at will; 
and Great Britain led in the adoption of this system. Its example 
has been followed by fifteen European nations — every country of 
Europe but Portugal, Turkey, and the Balkan States — and by Canada, 
Australia, New Zealand, and the British South African States. Our 
consuls in these countries report the operation of these laws as 
satisfactory to both employers and employes. (Report 111. Employers' 
Liability Com., p. 214.) 

In the United States, Congress passed a law in 1906 applying 
the system to interstate commerce; but the Supreme Court held it 
invalid because the wording made it apply to commerce within a 
State. (207 U. S., p. 463.) Congress then, in 1908, passed another 
law restricted to interstate commerce. This law was sustained by 
the Unitel States District Court for Arkansas, in 1909 (169 Federal 
Reporter, p. 942); but at nearly the same time it was held invalid 
by the Supreme Court of Connecticut. (82 Conn., p. 352.) Where the 
courts will finally land with the question is one of the inscrutable 
mysteries; but it is very evident that if the State of Indiana should 
want the system it must provide for it in its Constitution. 

* XI. 

Other Proposed Changes. 

The remaining proposed changes in the Constitution are so well 
understood that little explanation of them is needed. Those in the 
"schedule" apply only to the taking effect of the constitution, and do 
not affect its provisions. Of those in the Constitution proper, that 
in section 21, article 1, is a provision that compensation shall be 
first assessed and tendered before private property is taken by the 
State for public use, save only in case of necessity. Under the pres- 
ent Constitution the State could take property and leave the owner 
to get his claim for it allowed by the legislature. Of course emer- 
gencies may arise in which such action would be necessary, but the 
proposed section limits such action to cases of necessity only. 

The change in section 4, article 2, is v for the prevention of false 
claims of residence by persons who have left the State as residents 
but who are brought back to vote. At present "residence" is held 
to be a matter of "intention," which nobody can know with certainty 



44 

but the person affected. For the protection of the public against 
fraudulent voting, the claimant is required to give evidence of his 
intention by a simple, public declaration of it. 

The proposed section 9 of article 4 limits regular sessions of the 
legislature to 100 days, and special sessions to 30 days; and limits 
the special sessions to the specific purposes for which they are called. 
The present Constitution (section 29. article 4) limits regular sessions 
to 61 days, and special sessions to 40 days. It is generally conceded 
that 60 days is too short a time in which to do the legislative work 
of the State properly, and it is well known that special sessions have 
been forced repeatedly on this account. A longer regular session, 
with the restrictions on special sessions, is fairer both to the legisla- 
tors and to the public. 

The change in section 19, article 4, is to get rid of our awkward and 
confusing system of titles to acts, which was intended to furnish in- 
formation, but which, when one gets through reading half a page of 
"An act to amend section 19 of an act entitled an act," etc., is more 
liable to leave one in hopeless bewilderment. The section amended 
is seemingly contradictory and vague. Its construction has varied, 
and in reality the brief title has been largely adopted as in "an act 
concerning elections." The brief name system was originated in 
Great Britain, and usually means a single declaratory section, as, 
"This law shall be known and referred to as 'The General Elections 
Act.' " The reason and convenience of the system are obvious. 

The change in section 22, article 4, permitting special charters for 
cities, is also one that has in fact been made by a common evasion of 
the constitutional provision against special legislation. The American 
people simply will not submit to laws of any kind that cause general 
inconvenience and are contrary to public sentiment; and the difficulty 
of amending our present Constitution has caused it to be nullified 
in Various features. One of the most notable was the prohibition of 
negroes coming into the State, which was an absolute "dead letter" 
from 1860 to 1880, when it was finally removed from the Constitution 
in form. This system of amending the Constitution by ignoring or 
violating it is objectionable as breeding a disrespect for law, and a 
disregard for the real "sacredness" of the Constitution. It is far better 
to amend the instrument openly. 

As has been mentioned, there were practically no cities in the 
State when the present Constitution was adopted in 1851, and the 
problems # of city government have developed here since that time. 
The demands of local self-government made the prohibition of special 
legislation intolerable, and under legislative evasion and judicial con- 
struction, based on the fiction of "classification," special charters have 
been made at will. Any one who doubts this statement may be con- 
vinced by the following extract from the index to the Laws of 1903: 
"Cities of more than 100,000, see Indianapolis. 
Cities of 50,000 to 100,000, see Evansville. 
Cities of 35,000 to 49,000, see Fort Wayne. 



Cities of 30,000 to 36,500, see South Bend. 

Cities of 20,900 to 30,000, see Muncie. 

Cities of 20,200 to 20,900, see Vincennes. 

Cities of 17,000 to 18,000, see Marion. 

Cities of 7,800 to 7,820, see Goshen. 

Cities of 7,200 to 7,700, see Alexandria. 

Cities of 7,095 to 7,105, see Frankfort. 

Cities of 6,000 to 7,000, see Bedford, Bloomington, Conners- 
ville, Crawfordsville, Princeton, Seymour, and Valparaiso. 

Cities of 5,300 to 5,800, see Mishawaka. 

Cities of 4,500 to 4,545, see Rushville. 

Cities of 4,025 to 4,050, see Martinsville. 

Cities of 3,410 to 3,420, see East Chicago. 

Cities and towns of 2,820 to 2,830, see North Vernon. 

Cities and towns of 1,400 to 1,420, see Arcadia, Converse, and 
Howell." 
The plain meaning of this is that in each of these cases the legisla- 
ture of 1903 adopted a special law applying only to the cities named; 
and it was very sensible to name the cities in the index, so that people 
would know what the laws meant without investigating a census 
report. But it is farcical to talk about the sacredness of the Consti- 
tution, and at the same time nullify its provisions by such evasions 
as this. The Supreme Court has held some of these laws unconsti- 
tutional. (162 Ind., p. 193; 164 Ind., p. 117.) 

The proposed section 14, of article 5, gives the Governor a real 
veto power, in place of the nominal one he now has, by requiring a 
three-fifths vote to pass a bill over his veto, and by authorizing him 
to veto special items of an appropriation bill. The object of the 
veto, from the American point of view, is to insure a serious recon- 
sideration of a proposed law in connection with the objections offered 
to it. Under the present system there have not been lacking instances 
of bills passed over a Governor's veto, in both houses, under suspen- 
sion of rules, on the same day that the veto was received. The 
present veto has no force but what the legislature chooses to give to it. 
The changes in sections 1 and 2 of article 6, section 11 of article 7, 
and section 8 of article 8, put all State and county officers on a com- 
mon basis of a four years' term without re-election. If there was ever 
any occasion for the discrimination giving part of them two years' 
terms, it disappeared long ago, and there is now a general rule of 
common consent that the occupant of a two-years' office is entitled 
to renomination without opposition, unless he has given cause for it. 
The change would remove a multiplicity of elections and simplify 
the entire official system of the State. 

Proposed section 2 of article 7 increases the maximum number of 
judges of the Supreme Court from five to eleven. In 1851 five judges 
could dispose of the cases brought to the court, but as the State grew 
it became impossible to do so. The court fell behind two or three 
years in the decision of cases, to the great injury of litigants. After 



46 

fruitless effort to get a majority of the people to adopt an amendment 
the legislature of 1891 created an Appellate Court, of five judges, to 
which a part of the work of the Supreme Court was transferred. Its 
existence was originally limited to six years, but it was found ^neces- 
sary to continue it, in 1897, in order to secure a reasonable securing 
of justice "speedily, and without delay." The system is so awkward 
and confusing that the law has had to be amended repeatedly; and it 
also denies in some Cases the appeal to the Supreme Court which 
citizens ought to have. It would be much more rational to adjust 
the court to the business conditions of today, than to try to adjust 
the business conditions to the court of 1851. 

Proposed section 21 of article 7 — the cause of the present "tie-up" 
of the power of amendment — is a question of common sense. The 
provision that "every person of good moral character, being a voter, 
shall be entitled to admission to practice law" was put in the Consti- 
tution on the amusing theory that the practice of law had become a 
sort of monopoly. The only objection made to requiring some sort 
of legal knowledge as a qualification is the equally amusing theory 
that "it is the smart lawyers that do the damage, and not the ignorant 
ones." Most of the damage done by smart lawyers is when they are 
opposed by ignorant ones who do not know how to attend to the 
interests of their clients. The sale of legal ability ought to have as 
much safeguard as the sale of butter. A man should not be allowed to 
misrepresent the quality of his goods — to hold himself out as a skilled 
lawyer, recognized by the courts, when he has no knowledge of law. 
Everybody recognizes this as to doctors; but there are cases where 
the loss of legal rights through an ignorant lawyer are almost as 
serious as the loss of health through an ignorant doctor. 

The remaining changes, those of sections 1 and 2 of article 16, re- 
lating to amendment, are among the most important, if not the most 
important, proposed. The effects to be secured by them are four, 
as follows: 

(1) The present source of trouble is removed by provision that 
an amendment which does not receive a majority of the votes, when 
submitted to the people, shall be defeated, and not remain "pending" 
to block other amendments. 

(2) Consideration of amendments is secured by allowing political 
parties to declare for or against them, and make them party issues. 
The only way to insure general public consideration of a question in 
this country is to make it a political issue. An amendment to the 
Constitution ought to receive careful consideration, and ought to be 
adopted by a majority of the electors, which is contemplated in the 
proposed change by requiring submission at a general election only. 

(3) The mode of general revision is made definite and certain 
instead of being left a matter of legislative discretion as at present. 

(4) The mode of special amendment is made simple, as was in- 
tended in the present Constitution, but failed of accomplishment. 
Under the proposed change any legislature can submit amendments 



to the people, which is . practically what is being done now, in the 
common use of the terms. The people should have in fact, as well 
as in theory, what they are declared by the Constitution to have, 
"at all times, an indefeasible right to alter and reform their govern- 
ment." It is both wrong and foolish to put unnecessary obstacles in 
the way of the exercise of that right. 

If a constitution contained only declarations of essential rights it 
would be different. Nobody wants to take away, for example, the 
right of habeas corpus, or freedom of conscience, and there is no 
danger of such a thing no matter how simple amendment may be 
made. But the Constitution also contains a mass of formal matter 
as to which a change of conditions may completely change the inter- 
ests of the public. As to such provisions, the experience of Indiana 
has demonstrated, as illustrated in cases heretofore mentioned, that 
when amendment is made difficult the people will remove them either 
by evading or by ignoring them. 

As a whole, there is no known material objection to any of the 
proposed changes. Some objection has been made because other 
changes were not proposed, but as to these it should be remembered 
that their future submission will be much easier if the proposed con- 
stitution be adopted than if it be rejected, and the present system of 
amendment be kept in force. There are some persons who approve 
of the proposed changes but object to the mode of submission. They 
should reflect that if they wish to rebuke the Democratic party for 
submitting a good thing to the people, the logical way to do it is to 
vote against the Democratic ticket, but for the constitution. In that 
way you make your rebuke reach the right persons, and do not, at 
the same time, spite yourself. If you really believe that "it is good 
meal, but it came through the wrong hopper," the sensible course is 
to take the meal and save your condemnation for the hopper. 



I 

'addendum. 

I THE INDIANA CONSTITUTION 



Parallel Columns Showing Proposed Changes- 
November, 1912. 



To be Voted on in 



BILL OF 

Present Constitution. 

Section 12. All courts shall be 
open; and every man, for injury done 
him in his person, property or repu- 
tation shall have remedy by due 
course of law. Jifstice shall be admin- 
istered freely and without purchase; 
completely, and without denial; 
speedily, and without delay. 



Section 21. No man's particular 
services shall be demanded without 
just compensation. No man's proper- 
ty shall be taken by law without just 
compensation; nor, except in the case 
of the state, without such compensa- 
tion first assessed and tendered. 



Present Constitution. 

Section 2. In all elections not oth- 
erwise provided for by this Constitu- 
tion, every male of the United States, 
of the age of twenty-one years and 
upward, who shall have resided in the 
State during the six months, and in 
the township sixty days, and in the 
ward or precinct thirty days, immedi- 
ately preceding such election, and ev- 
ery male of foreign birth, of the age 
of twenty-one years and upwards, who 
shall have resided in the United 
States one year, and shall have re- 
: sided in this State during the six 
t months, and in the township sixty 
days, and in the ward or precinct 
thirty days, immediately preceding 
ch election, and shall have declared 
lis intention to become a citizen of 
he United States, conformably to the 
' laws of the United States on the sub- 
ect of naturalization, shall be entitled 



RIGHTS. 

Proposed New Constitution. 

Section 12. All courts shall be 
open; and every man, for injury 
done to him in person, property or 
reputation, shall have remedy by due 
course of law; but the General As- 
sembly may enact a workman's com- 
pulsory compensation law, for injuries 
or death occurring in hazardous em- 
ployment. In enacting such law, the 
General Assembly shall have the right 
to define hazardous employment. Jus- 
tice shall be administered freely, and 
without purchase; completely, and 
without denial; speedily, and without 
delay. 



Section 21. No man's particular 
services shall be demanded without 
just compensation. No man's prop- 
erty shall be taken by law without 
just compensation; nor, in case of 
the State, without just compensation 
first assessed and tendered, save only 
| in case of necessity. 

ARTICLE II. 
Suffrage and Elections. 

Proposed New Constitution. 

Section 2. In all elections not oth- 
erwise provided for by this Constitu- 
tion, every male citizen of the United 
States, of the age of twenty-one 
years and upward, who shall have re- 
sided in the State during the twelve 
months, and in the township sixty 
days, and in the precinct thirty 
days, immediately preceding such 
election, shall be entitled to vote in 
the precinct in which he may reside 
if he shall have been duly registered 
according to law enacted by the Gen- 
eral Assembly as in this section pro- 
vided and shall have paid his poll tax 
due and payable the year of such elec- 
tion and the year previous thereto 
without delinquency; but all poll tax 
shall be payable in full at the spring 
payment of taxes, and may be paid 
separately from other taxes, at the 
option of the taxpayer. 



2 



to vote in the township or precinct 
where he may reside, if he shall have 
been duly registered according to law. 



Present Constitution. 

Section 4. No person shall be 
deemed to have lost his residence in 
the State by reason of his absence, 
either on business of this State or of 
the United States. 



Present Constitution. 

Section 2. The Senate shall not 
exceed fifty nor the House of Repre- 
sentatives one hundred members; 
and they shall be chosen by the elec- 
tors of the respective counties or dis- 
tricts into which the State may, from 
time to time, be divided. 



Present Constitution. 

Section 3. Senators shall be elected 
for the term of four years, and Repre- 
sentatives for the term of two years, 
from the day next after the general 
election: Provided, however, that the 
Senators-elect at the second meeting 
of the General Assembly under this 
Constitution shall be divided, by lot, 
into two equal classes, as nearly as 
may be; an,d the seats of the Senators 
of the first class shall be vacated at 
the expiration of two years, and of 
those of the second class at the 
expiration of four years; so that 
one-half, as nearly as possible, shall 
be chosen biennially forever thereaf- 
ter. And in case of increase in the 
number of Senators they shall be so 
annexed, by lot, to one or the other of 
the two classes, as to keep them as 
nearly equal as practicable. 



It shall be the duty of the General 
Assembly to provide by law at its 
first session after the adoption of this 
Constitution, for the registration of. 
all legal voters up to, and including 
November 1, 1913; but thereafter, no 
person not theretofore registered 
shall be admitted to registration who 
can not read in English or some other 
known tongue any section of the Con- 
stitution of the State. 

ARTICLE II. 

Proposed New Constitution. 

Section 4. No person shall be 
deemed to have lost his residence in 
this State by reason of his absence 
from the State, either on business of 
this State or of the United States; 
but any person absent from the State 
for twelve consecutive months for 
other reasons shall lose his residence 
unless, prior to the expiration of 
such year, he files with the clerk of 
the circuit court of the county in 
which he resides, a declaration of his 
intent to hold his residence, and the 
exact location of the same. 

ARTICLE IV. 
Legislative. 

Proposed New Constitution. 

Section 2. The Senate shall consist 
of fifty members, the House of Rep- 
resentatives ' shall not exceed one 
hundred and thirty members, the 
same to be apportioned among the 
several counties of the State as in 
section number 4 of this article pro- 
vided, and they shall be chosen by 
the electors of the respective counties 
and the districts into which the State 
may from time to time be divided. 

ARTICLE IV. 
Legislative. 

Proposed New Constitution. 

Section 3. Senators shall be elected 
for the term of four years from 
the day next after the general elec- 
tion: Provided, however, that the Sen- 
ators holding office at the time this 
Constitution goes into effect, shall 
serve until the expiration of the term 
for which they were elected. 






Present Constitution. 

Section 4. The General Assembly 
shall, at its second session after the 
adoption of this Constitution, and ev- 
ery six years thereafter, cause an 
enumeration to be made of all the 
male inhabitants over the age of 
twenty-one years. 



Present Constitution. 

Section 5. The number of Senators 
and Representatives shall at the 
session next following each period of 
making such enumeration, be fixed by 
law, and apportioned among the sev- 
eral counties, according to the num- 
ber of male inhabitants above twenty- 
one years of age in each: Provided, 
that the first and second elections of 
members of the General Assembly, 
under this constitution, shall be ac- 
cording to the apportionment last 
made by the General Assembly before 
the adoption of this constitution. 

ARTICLE IV. 
Legislative. 



ARTICLE IV. 

Legislative. 

Proposed New Constitution. 

Section 4. Each county shall have 
at least one Representative in the 
House of Representatives, who shall 
be elected for a term of two years 
from the day after their election. A 
representative quota shall be obtained 
by dividing the total population of the 
State at the last national census by 
ninety-two, and each county having 
population in excess of a quota shall 
have an additional representative for 
each full quota and fractional surplus 
of half a quota, in excess of the first 
quota. If any office of representative 
shall become vacant by death, resig- 
nation or otherwise, the Governor 
shall call a special election to fill the 
vacancy. 

ARTICLE IV. 
Legislative. 

Proposed New Constitution. 

Section 5. The number of Senators 
shall be apportioned among the sev- 
eral counties according to the popu- 
lation as shown by the last preceding 
United States census, but they shall 
only be apportioned every ten years: 
Provided, That the first election of 
Senators in the General Assembly un- 
der this constitution, shall be accord- 
ing to the apportionment last made by 
the General Assembly before the 
adoption of this constitution. 



Present Constitution. 

Section 9. The sessions of the 
General Assembly shall be held 
biennially at the capitol of the 
State, commencing on Thursday 
next after the first Monday of 
January, in the year one thousand 
eight hundred and fifty-three, and on 
the same day of every second year 
thereafter, unless a different day or 
place shall have been appointed by 
law. But if, in the opinion of the 
Governor, the public welfare shall re- 
quire it, he may, at any time, by proc- 
lamation, call a special session. 



Present Constitution. 

Section 19. Every act shall em- 
brace but one subject and matters 



Proposed New Constitution. 

Section 9. The sessions of the Gen- 
eral Assembly shall be held biennially 
at the capitol of the State, beginning 
on the first Thursday after the first 
Monday in January, 1913, and on the 
same day every second year thereaf- 
ter, unless a different day or place 
shall have been appointed by law. 
The General Assembly shall remain 
in session for not exceeding one hun- 
dred days. If in the opinion of the 
Governor the public welfare shall re- 
quire it, he may, at any time, by 
proclamation, call a special session 
for a specific purpose or purposes, but 
for a limited time, not to exceed thir- 
ty days, at which special session only 
such specific purpose or purposes 
shall be taken up and acted upon. 

ARTICLE IV. 

Legislative. 

Proposed New Constitution. 

Section 19. Every act shall em- 
brace but one subject and matters 






properly connected therewith, which 
subject shall be expressed in the ti- 
tle. But if any subject shall be em- 
braced in an act which shall not be 
expressed in the title, such act 
shall be void only as to so much there- 
of as shall not be expressed in the 
title. 






Present Constitution. 

Section 22. The General Assembly 
shall not pass local or special laws in 
any of the following enumerated 
cases, that is. to say: 

Regulating the jurisdiction and du- 
ties of justices of the peace and con- 
stables. 

For the punishment of crimes 'and 
misdemeanors. 

Regulating the practice in courts of 
justice. 

Providing for changing the venue 
in civil and criminal cases. 

Granting divorces. 

Changing the names of persons. 

For laying out, opening, and work- 
ing on highways, and for the election 
or appointment of supervisors. 

Vacating roads, towns, plats, 
streets, alleys, and public squares. 

Summoning and impaneling grand 
and petit juries, and providing for 
their compensation. 

Regulating county and township 
business. 

Regulating the election of county 
and township officers, and their com- 
pensation. 

For the assessment and collection 
of taxes for the state, county, town- 
ship or road purposes. 

Providing for supporting common 
schools and for the preservation of 
school funds. 

In relation to fees or salaries; ex- 
cept that the laws may be so amend- 
ed as to grade the compensation of 
officers in proportion to the popula- 
tion and necessary services required. 

In relation to interest on money. 

Providing for opening and conduct- 
ing elections of state, county, or town- 
ship officers, and designating the 
place of voting. 

Providing for the sale of real estate 
belonging to minors or other persons, 
laboring under legal disabilities, by 
executors, administrators, guardians, 
or trustees. 



properly connected therewith; which 
subject shall be expressed in the ti- 
tle unless such act shall provide a 
brief and comprehensive name for it- 
self, by which it may thereafter be 
known and referred to; but if any sub- 
ject shall be embraced in an act which 
shall not be expressed in or fairly 
covered by the title, such a,n act shall 
be void only as to so much thereof 
as shall not be expressed or covered. 
ARTICLE IV. 
Legislative. 

Proposed New Constitution. 

Section 22. The General Assembly 
shall not pass local or special laws in 
any of the following enumerated 
cases, that is to say: 

Regulating the jurisdiction and du- 
ties of the justices of peace and con- 
stables; 

For the punishment of crimes and 
misdemeanors. 

Regulating the practice in courts 
of justice; 

Providing for changing the venue in 
civil and criminal cases; 

Granting divorces; 

Changing the names of persons; 

For laying out, opening, and work- 
ing on highways, and for the election 
or appointment of supervisors; 

Vacating roads, town plats, streets,, 
alleys and public squares; 

Summoning and impaneling grand 
and petit juries and providing for 
their compensation; 

Regulating county and township 
business; 

Regulating the election of county 
and township officers, and their com- 
pensation; 

For the assessment and collection 
of taxes for state, county, township, 
or road purposes; 

Providing for supporting common 
schools and for the preservation of 
school funds; 

In relation to fees or salaries except 
that the laws may be so made as to 
grade the compensation of officers ; n 
proportion to the population and tfrie 
necessary services required. 

In relation to interest on money; 

Providing for opening and conduct- 
ing the elections of state, county, or 
township officers, and designating the 
place of voting; 

Providing for the sale of real estate 
belonging to minors or other persons 
laboring, under legal disabilities, by 
executors, administrators, guardians, 
or trustees; 

But the General Assembly may 
adopt special charters for the differ- 
ent cities of the state. 



Present Constitution. 

Section 29. The members of the 
General Assembly shall receive for 
their services a compensation to be 
fixed by law; but no increase of com- 
pensation shall take effect during the 
session at which such increase may 
i be made. No session of the General 
Assembly, except the first under this 
constitution, shall extend beyond the 
term of sixty-one days, nor any spec- 
ial session beyond the term of forty 
days. 

ARTICLE V. 
Executive. 



ARTICLE IV. 
Legislative. 

Proposed New Constitution. 

Section 29. The members of the 
General Assembly shall receive for 
their services a compensation to be 
fixed by law, but no increase of com- 
pensation shall take effect during the 
session at which such increase shall 
be made. 



Present Constitution. 

Section 14. Every bill which shall 
have passed the General Assembly 
shall be presented to the Governor; 
if he approve, he shall sign it, but if 
not, he shall return it, with his ob- 
jections, to the house in which it 
shall have originated, which house 
shall enter the objections, at large, 
upon its journals, and proceed to re- 
consider the bill. If, after such re- 
consideration, a majority of all the 
members elected to that house shall 
agree to pass the bill, it shall be sent, 
with the Governor's objections, to the 
other house, by which it shall like- 
wise be reconsidered; and if approved 
by a majority of all the members 
elected to that house it shall be a 
law. If any bill shall not be returned 
by the Governor within three days, 
Sunday excepted, after it shall have 
been presented to him, it shall be a 
law without his signature, unless the 
general adjournment shall prevent its 
return, in which case it shall be a 
law, unless the Governor, within five 
days next after such adjournment, 
shall file such bill, with his objec- 
tions thereto, in the office of Secretary 
of State, who shall lay the same be- 
fore the General Assembly, at its next 
session, in like manner as if it had 
been returned by the Governor. But 
no bill shall be presented to the Gov- 
ernor within two days next previous 
to the final adjournment of the Gen- 
eral Assembly. 



Proposed New Constitution. 

Section 14. Every bill which shall 
have passed the General Assembly 
shall be presented to the Governor, if 
he approve, he shall sign it, but if 
not, he shall return it, with his ob- 
jections, to the house in which it 
shall have originated, which house 
shall enter the objection, at large, 
upon its journal, and proceed to re- 
consider the bill. If, after such re- 
consideration, three-fifths of all the 
members elected to that house* shall 
agree to pass the bill, it shall be 
sent, with the Governor's objections, 
to the other house, by which it shall 
likewise be reconsidered; and, if ap- 
proved by three-fifths of all the mem- 
bers elected to that house, it shall be 
a law. If any bill shall not be re- 
turned by the Governor within three 
days, Sunday excepted, after it shall 
have been presented to him, it shall 
be a law without his signature, unless 
the general adjournment shall prevent 
its return, in which case it .shall be a 
law, unless the Governor, within five 
days next after such adjournment, 
shall file such bill, with his objections 
thereto, in the office of the Secretary 
of State, who shall lay the same be- 
fore the General Assembly, at its next 
session, in like manner as if it had 
been returned by the Governor. But 
no bill shall be presented to the Gov- 
ernor without his consent within three 
days next previous to the final ad- 
journment of the General Assembly. 
The Governor may veto any clause or 
clauses, item or items, in any appro- 
priation bill, and may approve the 
residue of such bill. 



ARTICLE VI. 

Administrative. 
Present Constitution. 

Section 1. There shall be elected, 
by the voters of the State, a Secretary 
and Auditor, and a Treasurer of 
State, who shall severally hold their 
offices for two years. They shall per- 



Proposed New Constitution. 

Section 1. There shall be elected 
by the voters of the State, a Secre- 
tary,- an Auditor, a Treasurer of State, 
Attorney-General, Reporter of the Su- 
preme Court, and Clerk of the Su- 






6 



form such duties as rqay be enjoined 
by law; and no person shall be eligi- 
ble to either of said offices more 
than four years in any period of six 
years. 



Present Constitution. 

Section 2. There shall be elected, 
in each county, by the voters thereof, 
at the time of holding general elec- 
tions, a clerk of the circuit court, au- 
ditor, recorder, treasurer, sheriff, cor- 
oner and surveyor. The clerk, audi- 
tor, and recorder shall continue in 
office for four years; and no person 
shall be eligible to the office of clerk, 
recorder or auditor, more than eight 
years in any period of twelve years. 
The treasurer, sheriff, coroner and 
surveyor shall continue in office two 
years; and no person shall be eligible 
to the office of treasurer or sheriff 
more than four years in any period of 
six years. 

ARTICLE VII. 
Judicial. 



preme Court, said officers and all oth- 
er State officers created by law and 
to be elected by the people, except 
Supreme Court Judges, shall severally 
hold their office for four years. They 
shall perform such duties as may be 
enjoined by law; and no person other 
than judges shall be eligible to any 
one of said offices for more than four 
years in any period of eight years. 

ARTICLE VI. 

Administrative. 

Proposed New Constitution. 

Section 2. There shall be elected 
in each county by the voters thereof 
at the time of holding general elec- 
tions, a clerk of the circuit court, au- 
ditor, recorder, treasurer, sheriff, cor- 
oner and surveyor, who shall severally 
hold their offices for four years; and 
no person shall be eligible to either of 
said offices for more than four years 
in any period of eight years. 



Present Constitution. 

Section 2. The Supreme Court shall 
consist of not less than three, nor 
more than five judges, a majority of 
whom shall form a quorum; they shall 
hold their offices for six years, if they 
so long behave well. 



Proposed New Constitution. 

Section 2. The Supreme Court shall 
consist of not less than five, nor more 
than eleven judges; a majority of 
whom shall form a quorum. They 
shall hold their office for six years, 
if they so long behave well. 



Present Constitution. 

Section 11. There shall be elected 
in each judicial circuit, by the voters 
thereof, a prosecuting attorney, who 
shall hold his office for two years. 



Present Constitution. 

Section 20. The General Assembly 
at its first session after the adoption 
of this Constitution, shall provide for 
the appointment of three commission- 
ers, whose duty it shall be to revise, 
simplify, and abridge the rules, prac- 
tice, pleadings and forms of the 
courts of justice. And they shall pro- 
vide for abolishing the distinct forms 
of action at law now in use and that 
justice shall be administered in a 
uniform mode of pleading, without 
distinction between law and equity. 
And the General Assembly may, also, 



ARTICLE VII. 
Judicial. 

Proposed New Constitution. 

Section 11. There shall be elected 
in each judicial circuit, by the voters 
thereof, a prosecuting attorney, who 
shall hold his office for four years, 
and shall not be eligible to hold said 
office more than four vears in any 
period of eight years. 

ARTICLE VII. 
Judicial. 

Proposed New Constitution. 

Section 20. The General Assembly 
shall, from time to time, take such 
steps as may be necessary for the 
codification of the laws of the State, 
and on petition of twenty-five per cen- 
tum of the qualified electors of the 
State a„t the last general election, the 
General Assembly may adopt laws 
providing for the initiative, referen- 
dum and recall, both of State and lo- 
cal application. But no bill for the 
recall of the judiciary shall ever be 
passed. 






make it the duty of said commission- 
ers to reduce into a systematic code 
the general statute law of the state; 
and said commissioners shall report 
the result of their labors to the Gen- 
eral Assembly, with such recommen- 
dations and suggestions, as to abridg- 
ment and amendment, as to said com- 
missioners may seem necessary or 
proper. Provisions shall be made, by 
law, for filling vacancies, regulating 
the tenure of office, and the compen- 
sation of said commissioners. 

, ARTICLE VII. 
Judicial. 



Present Constitution. 

Section 21. Every person of good 
moral character being a voter shall 
be entitled to admission to practice 
law in all courts of justice. 

ARTICLE VIII. 
Education. 



Proposed New Constitution. 

Section 21. The General Assembly 
may by law provide for the qualifica- 
tions of persons admitted to the prac- 
tice of the law. 



Present Constitution. 

Section 8. The General Assembly 
shall provide for the election, by the 
voters of the State, of a State Super- 
intendent of Public Instruction, who 
shall hold his office for two years, and 
whose duties and compensation shall 
be prescribed by law. 



Present Constitution. 

Section 1. All officers whose ap- 
pointment are not otherwise provided 
for in this Constitution shall be chosen 
in such manner as now is, or here- 
after may be, prescribed by law. 



Proposed New Constitution. 

Section 8. The General Assembly 
shall provide for the election, by the 
voters of the State, of a State Super- 
intendent of Public Instruction, who 
shall hold his office for four years, 
and whose duties and compensation 
shall be prescribed by law. 

ARTICLE XV. 

Miscellaneous. 

Proposed New Constitution. 

Section 1. All State officers whose 
appointments are not otherwise pro- 
vided for in this Constitution, shall 
be elected by the people or appointed 
by the Governor as may be provided 
by law; and all municipal and local of- 
ficers shall be elected or appointed 
as provided by law; but no officers 
shall be elected or appointed by the 
General Assembly except its own of- 
ficers and United States Senators; 
and no elective officer shall have his 
salary, compensation, or emoluments 
increased during the period for which 
he was elected. 



Present Constitution. 

Section 1. Any amendment or 
amendments to this Constitution may 
be proposed in either branch of the 
General Assembly; and if the same 
shall be agreed to by a majority of 
the members elected to each of the 
two houses, such proposed amend- 
ment or amendments shall, with the 
yeas and nays thereon, be entered on 
their journals, and referred to the 
General Assembly to be chosen at the 
next general election; and if, in the 
General Assembly so next chosen, 
such proposed amendment or amend- 
ments shall be agreed to by a ma- 



ARTICLE XVI. 
Amendments. 

Proposed New Constitution. 

Section 1. Any amendment or 
amendments to this Constitution may 
be proposed in either branch of the 
General Assembly; and if the same 
shall be agreed to by a majority of 
the members elected to each of the 
two houses, such proposed amend- 
ment or amendments shall, with the 
yeas and nays thereon, be entered on 
their journals; and it shall be the duty 
of the General Assembly to submit 
such amendment or amendments to 
the electors of the State at the next 
general election, and if a majority of 
said electors voting on such amend- 



jority of all the members elected to 
each house, then it shall be the duty 
of the General Assembly to submit 
such amendment or amendments to 
the electors of the State; and if a 
majority of said electors shall ratify 
the same, such amendment or amend- 
ments shall become a part of this 
Constitution. 



Present Constitution. 

Section 2. If two or more amend- 
ments shall be submitted at the same 
time, they shall be submitted in such 
manner that the electors shall vote 
for or against each of such amend- 
ments separately; and while an 
amendment or amendments which 
shall have been agreed upon by one 
General Assembly shall be awaiting 
the action of a succeeding General As- 
sembly, or of the electors no addi- 
tional amendment or amendments 
shall be proposed. 

SCHEDULE 



ment or amendments shall ratify the 
same, such amendment or amend- 
ments shall become a part of the Con- 
stitution; but if a majority of said 
electors shall not ratify the same, such 
amendment or amendments shall be 
defeated. Any political party may de- 
clare for or against any amendment, 
in convention, and have such declara- 
tion made a part of its ticket for sub- 
mission to the electors but no new 
Constitution shall be submitted to the 
people of this State for ratification 
and adoption or rejection, until by 
virtue of a*n act of the General As- 
sembly a majority of the legal voters 
of the State have declared in favor of 
a constitutional convention; when 
and whereupon such constitutional 
convention shall be convened in such 
manner as the General Assembly may 
provide; but any Constitution by such 
convention proposed shall be submit- 
ted to the voters of this State for rati- 
fication or rejection at a special elec- 
tion as may be ordered by the Gen- 
eral Assembly. 

ARTICLE XVI. 
Amendments. 

Proposed New Constitution. 

Section 2. If two or more amend- 
ments shall be submitted at the same 
time, they shall be submitted in such 
manner that the electors shall vote i 
for or against each of such amend- ' 
ments separately; and while such 
amendment or amendments which 
shall have been agreed upon be await- 
ing the action of the electors, no ad- 
ditional amendment or amendments 
on the same subject shall be proposed. 



Sixth. There shall be a session of 
the General Assembly on the first 
Monday of December, in the year one 
thousand eight hundred and fifty-one. 

Eighth. The first general election 
under this Constitution shall be held 
in the year one thousand eight hun- 
dred and fifty-two. 

Ninth. The first election for Gover- 
nor, Lieutenant-Governor, Judges of 
the Supreme Court and Circuit Courts, 
Clerk of the Supreme Court, Prosecut- 
ing Attorney, Secretary, Auditor, and 
Treasurer of State, and the State Su- 
perintendent of Public Instruction, un- 
der this Constitution, shall be held at 
the general election in the year one 
thousand eight hundred and fifty-two; 
and such of said officers as may be in 
office when this Constitution shall go 
into effect shall continue in their re- 
spective offices until their successors 
shall have been elected and qualified. 



Sixth. There shall be a session of 
the General Assembly, commencing 
on the first Thursday after the first 
Monday in January, in the year one 
thousand nine hundred and thirteen. 

Eighth. The first general election 
under this Constitution shall be held 
in the year one thousand nine hun- 
dred and fourteen. 

Ninth. The first election for Gover- 
nor, Lieutenant-Governor, Judges of 
the Supreme and Circuit Courts, un- 
der this Constitution, shall be held 
at the general election in the year 
one thousand nine hundred and six- 
teen, and all other officers at the gen- 
eral election in the year one thousand 
nine hundred and fourteen,; but all offi- 
cers who may be in office when this 
Constitution shall go into effect shall 
hold their offices to the expiration of 
the term for which they shall have 
been elected, or until their successors 
shall have been elected and qualified. 



LRBJa'14 



